Law Maker

Anuradha Bhasin v. Union of India

Supreme Court of India, 10 January 2020, 3 judges

Speech and trade over the internet are protected by Article 19(1)(a) and (g); internet suspension and Section 144 CrPC orders must be published, proportionate, temporary and reviewable, and the Court directed review of the Jammu and Kashmir orders.

Facts

From 4 August 2019, mobile, internet and landline services in the Kashmir valley were suspended, and on 5 August 2019, the day Constitutional Order 272 was issued, District Magistrates imposed restrictions on movement and gatherings under Section 144 CrPC. Anuradha Bhasin, editor of the Kashmir Times, said she could not publish its Srinagar edition from 6 August 2019. Ghulam Nabi Azad said he was prevented from travelling to and communicating with his constituency. Both petitioned under Article 32 for the orders to be quashed and communications restored. Asked to produce the orders, the State first claimed privilege, then dropped the claim and placed only sample orders on record, citing difficulty.

Questions before the Court

  1. Can the Government claim exemption from producing all orders passed under Section 144 CrPC and the Suspension Rules?
  2. Are the freedom of speech and expression and the freedom to carry on trade or business over the internet part of the fundamental rights under Part III?
  3. Was the Government's action of prohibiting internet access valid, and were the restrictions under Section 144 CrPC valid?
  4. Was the petitioner's freedom of the press violated?

What the Court held

  • The State must produce orders restricting fundamental rights so that they can be challenged; no law should be passed in a clandestine manner, and difficulty is not a valid ground to refuse production. All orders under Section 144 CrPC and for suspension of telecom services must be published.
  • Freedom of speech and expression and freedom to practise a profession or carry on trade over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and (g), subject to restrictions under Article 19(2) and (6), including the test of proportionality. The Court distinguished the internet as a tool from the freedom of expression through it.
  • An order suspending the internet indefinitely is impermissible under the Temporary Suspension of Telecom Services Rules, 2017. Suspension must be temporary, proportionate, no longer than necessary and subject to judicial review; the Review Committee must review it every seven working days.
  • Section 144 CrPC may be used against apprehended as well as present danger, but only in the nature of an emergency. It cannot suppress legitimate expression or democratic rights; orders must state material facts, apply proportionality and the least intrusive measure, and repetitive orders are an abuse of power.
  • The authorities were directed to review all internet suspension and Section 144 orders forthwith, revoke those not in accordance with law, and consider allowing essential services. On the press claim, no evidence of a chilling effect was shown and publication had resumed, so the Court only stressed that governments must respect press freedom.

Why it matters

The judgment declares that expression and trade over the internet are protected under Article 19(1)(a) and (g), applies the proportionality standard to internet shutdowns and Section 144 CrPC orders, and requires such orders to be published, reasoned, time-bound and reviewable. It reads into the Suspension Rules a duty of publication and periodic review, and sets out limits on the use of Section 144 CrPC.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.”
N.V. Ramana, J.Page 28 of the judgment
“It must be noted that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands compliance of the people requires to be notified directly and reliably.”
N.V. Ramana, J.Page 81 of the judgment
“c. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.”
Page 128 of the judgment
“k. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. l. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same.”
Page 129 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Anuradha Bhasin v. Union of India and Ors.
Case
Writ Petition (Civil) No. 1031 of 2019, with Writ Petition (Civil) No. 1164 of 2019
Decided
10 January 2020
Bench
N.V. Ramana, R. Subhash Reddy, B.R. Gavai
Opinions
Unanimous. Judgment written by N.V. Ramana, J. and signed by all three Judges.

Questions on this case

3 questions in live Law Maker papers mention this case. A few from free papers:

  1. Question 1, Landmark Judgments Practice Set 1

    With reference to Anuradha Bhasin v. Union of India (2020), consider the following statements: 1. The freedom of speech and expression and the freedom to carry on any trade or business using the medium of the internet are constitutionally protected under Article 19(1)(a) and Article 19(1)(g). 2. The Court declared access to the internet to be a fundamental right in itself. 3. An order suspending internet services indefinitely is impermissible. Which of the statements given above is/are correct?

    1. A. 2 and 3 only
    2. B. 1 and 3 only
    3. C. 1, 2 and 3
    4. D. 1 and 2 only
    Show the answer

    B. 1 and 3 only

    The Court declared that speech and trade through the internet are protected under Article 19(1)(a) and 19(1)(g), subject to restrictions under Article 19(2) and (6) and the test of proportionality, and held that an indefinite suspension of internet services is impermissible under the Suspension Rules of 2017. It expressly declined to express any view on whether access to the internet is itself a fundamental right, so statement 2 is wrong.