Case Details

  • Full name of the Case: Anuradha Bhasin V. Union of India
  • Court: Supreme Court of India
  • Judges: Justice N.V. Ramana, Justice B.R. Gavai and Justice Subhash Reddy
  • Citation: AIR 2020 SC 1308[1]s
  • Date of Decision: 10 January, 2020

Introduction

The judgment in the case of Anuradha Bhasin V. Union of India impacted Constitutional Law in India to a large extant. This judgment became prominent due to its curious and notable subject matter. Its decision was given by the Hon. Supreme Court of India.

Facts

In August 2019, certain guidelines were issued in public interest by the Civil Secretariat of the Home Department, Government of Jammu and Kashmir for the tourists to cut short their stay and make their arrangements to return from the State of Jammu and Kashmir, also the educational institutions and offices were asked to shut their operations till further orders.

On August 5th, 2019, a Constitutional Order No. 272 issued by the President of India applying every provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying article 360 of Indian Constitution in its application in the State of Jammu and Kashmir. Following this, the District Magistrate (DM) of Jammu and Kashmir imposed restrictions under section 144[2], restricting the public gathering and movement apprehending breach of peace and tranquility in the state. Movements of journalists were restricted and this was challenged under article 19 of Indian Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation. Also the legality of shutting down the internet connection and restricting movements in the State of Jammu and Kashmir was challenged in the Hon. Supreme Court of India under article 32 of the Constitution of India.

Issues

  • Whether the Government can claim exemption from producing all the orders passed under section 144 [3] and others under suspension rules?[4]
  • Whether imposing restrictions under section 144 [5] are valid?
  • Whether the freedom of speech and expression, freedom to practice any profession or to carry out any trade, occupation or business over the internet is a part of Fundamental Rights enshrined under Part III of the Constitution of India?
  • Whether the action of Government to prohibit internet access in the state is valid?

Analysis

Petitioner's Argument

The Petitioner - Ms. Anuradha Bhasin, the Executive Editor of the Kashmir Times Srinagar Edition, contended that internet is crucial for modern press, without which print media has come to “grinding halt”. [6] She submitted that since August 6th, 2019, she was unable to publish her newspaper. Following arguments were contended by the petitioner

  • That some trades are completely dependent on internet. This Right to trade through internet also fosters consumerism and provides wide availability to choose different goods and services.
  • That the Freedom of Trade and Commerce via the medium of internet is protected under Article 19 (1) (g) of Indian Constitution, which is subject to certain restrictions provided under Article 19 (6) of Indian Constitution.
  • That the restrictions imposed in the state under section 144 [7] were neither reasonable nor proportional with the aim of the public policy. It was asserted that “public order” is different from “law and order”. The restrictions were imposed as argued by the respondents was due to a threat to law and order.
  • That, neither of those two expressions was at risk before passing the order of restriction under section 144[8]. It was also pleaded by the respondents that these restrictions were temporary in nature, but they have been enforced for more than 100 days.

In another Writ Petition, the petitioner- Mr. Ghulam Nabi Azad, a Member of Parliament (MP) from the State of Jammu and Kashmir, argued the following:

  • That the extent of the restriction under section 144 [9] must be imposed to a specific group of people, it cannot be applied to the entire State of Jammu and Kashmir.
  • The government should impose less restrictive measures and must balance the Fundamental Rights of the citizens of India as well as maintain the security of people.
  • That imposing restrictions on the internet in the whole State of Jammu and Kashmir impacts both Freedom of Speech and Expression[10] and Freedom to carry any Trade, Profession or Occupation[11].

Respondent's Argument

Following arguments were made by the Mr. K.K. Venugopal, the learned Attorney General for Union of India and Mr. Tushar Mehta, the Solicitor General of the State of Jammu and Kashmir:

  • That restrictions on internet in the State of Jammu and Kashmir were essential in order to combat terrorism.
  • That the standard of free speech and expression cannot be applied to the internet in the view of the fact that internet is boundless as it opens up for a two-way communication through the engagement on social media and the dangers of the dark web is also present.
  • That particular websites could not be targeted, but instead, the internet as a whole was supposed to be shut down in the state of Jammu and Kashmir.
  • That the claims made by plaintiff on the stringency of the restrictions on internet were grossly exaggerated.

Judgement

Following was held by the judges:

  1. That the orders for restrictions as mentioned under section 144 of Criminal Procedure Code, 1973 and orders for internet suspension for a temporary period of time must be published and made available for general public at the earliest.
  2. That section 144 of Criminal Procedure Code, 1973 cannot be used to suppress the legitimate exercise of fundamental rights. Such powers should be directed to deal with emergencies that are likely to cause obstruction, annoyance, or injury to persons. And they are subject to scrutiny by the judiciary.
  3. That Freedom of Speech and Expression as mentioned under article 19(1 (a) of the Constitution of India enjoys constitutional protection over the medium of the internet too.

Conclusion

The judgment in the case of Anuradha Bhasin V. Union of India, delivered by the Hon. Supreme Court of India, is related to Fundamental Rights mentioned in Indian Constitution. The judgment was well put together and has successfully sets a benchmark to consider that Freedom of Speech and Expression and Freedom to Practice any Profession or carry on any Trade, Business or Occupation through medium of internet is a Fundamental Right which is guaranteed as well as protected under Article 19 of the Constitution of India.

References


[2] Criminal Procedure Code, 1973

[3] Criminal Procedure Code, 1973

[5] Criminal Procedure Code, 1973

[7] Criminal Procedure Code, 1973

[8] Criminal Procedure Code, 1973

[9] Criminal Procedure Code, 1973

[10] Article 19 (1) (a) of Indian Constitution

[11] Article 19 (1) (g) of Indian Constitution

About the Author: This Case Brief is prepared by Ms. Arushi Jain, law student at Jagran Lakecity University. She can be reached at arushijain3@yahoo.com 

MyLawman is now on Telegram (t.me/mylawman) Follow us for regular legal updates. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter or join our whats app group .You can also subscribe for our Newsletter for Email Updates. 

 For More Case Briefs, Click Here