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Case Reviews, The Law

Anuradha Bhasin and Ors. v. Union of India (UOI) and Ors. (2020) 3 SCC 637

Constitution of India- Right to Freedom- Article19(1)(a), Article 19(1)(g), Article 19(6). Right to Internet is a fundamental right.

By: Sakshi Jain, 3rd Year LL.B., ILS Law College, Pune.

Facts of the case:

The issue starts with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make safe arrangements to go back. Subsequently, educational institutions and offices were also shut down until further orders.

On August 4, 2019 internet services, mobile connectivity, and landline were shut down until further orders. [i]

On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954.

On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquillity under Section 144 of CrPC.  Due to this, journalist movements were restricted and this was challenged under Article 19 of the Constitution

which guarantees freedom of speech and expression and freedom to carry any trade or occupation.[ii]

In this context, in the Supreme Court, the legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution.

Issues:

1. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade, or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

2. Whether the Government’s action of prohibiting internet access is valid?

Rules:

In light of prevailing circumstances, District Magistrates, apprehending imposed restrictions on movement and public gatherings under Section 144 of the Code of Criminal Procedure

Arguments Advanced:

Senior Counsel for the Petitioner- It was submitted that the conduct of the State, in producing documents and status reports during argumentation, was improper, as it did not allow the Petitioners with sufficient opportunity to rebut the same. Concerning the orders restricting movement passed Under Section 144, Code of Criminal Procedure, the learned senior Counsel contended that such an order is made to deal with a ‘law and order’ situation, but the orders do not indicate any existing law and order issue, or apprehension thereof.

Mr. K.K. Venugopal, Learned Attorney General for the Union of India-

According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism and internal militancy, it would have been foolish to have not taken any preventive measures in the circumstances.

The necessity of the orders Under Section 144, Code of Criminal Procedure is apparent from the background facts and circumstances when there can be huge violence if the Government did not take these kinds of measures. Similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State.

Decision:

The bench of Justices N.V. Ramana, R. Subhash Reddy, and B.R. Gavai declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of Internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) respectively.

While such freedom is not absolute, the restrictions imposed on it should align with the mandate under Article 19(2) and Article 19(6) of the Constitution, inclusive of the test of proportionality, the bench ruled. The judgment to some extent is paradoxical.[iii]

Court added that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” This obliges the state to protect the fundamental rights and does not away from them in a cavalier manner.

Further said, that state cannot clandestinely pass any law on mere apprehension of danger.

To this, the court adds that James Madison stated “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their Governors must arm themselves with the power which knowledge gives”. The court should take proactive orders in producing before the court unless there is a special privilege or countervailing public interest. But then, this is to be decided by the court that in every case according to the facts and circumstances that public interest or privilege can override the rights of the petitioner and that part of the order can be redacted. In the present case, initially the state privilege but later on produced some orders citing some difficulty in producing all the orders. Hence, this cannot be a valid ground or reason to refuse to produce the order. [iv]

Therefore, the ‘right to internet’ is a part of the fundamental right under Article 19 of the constitution.

Precedents:

Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (24.08.2017 – SC) : MANU/SC/1044/2017. Right to privacy was held to be a fundamental right under Article 21 of the constitution.

End Notes:

  1. Rishita Gupta, Ayush Verma, Anuradha Bhasin vs. Union of India- Case Analysis, IPLEADERS (April 15, 2020), https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/
  2. Rishita Gupta, Ayush Verma, Anuradha Bhasin vs. Union of India- Case Analysis, IPLEADERS (April 15, 2020), https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/
  3. V. Venkatesan, Verdict on Internet curbs in J&K in defence of free speech, but relief remains elusive, FRONTLINE(January 11, 2020 14:58 IST), https://frontline.thehindu.com/dispatches/article30542427.ece
  4. Rishita Gupta, Ayush Verma, Anuradha Bhasin vs. Union of India- Case Analysis, IPLEADERS (April 15, 2020), https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/

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