Case Note:
Citation: 2019 SCC Online SC 1725
Decided on: 10 January 2020
Court: Supreme Court of India
Quorum: N.V. Ramana, V. Ramasubramanian
Introduction:
Internet is one of the greatest inventions of human society in the 20th century, which has become an essential part of both daily life and social life. Internet shutdowns have become an all too familiar issue for users in a country. Many countries and international organizations have considered that internet access rights are one of the basic human rights. United Nations General Assembly in 1993 stated that it is the duty of States, regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms of an individual. Its openness and interactivity make it possible for people to gain more resources at a much lower cost by exchanging ideas, expressing themselves and to increase the reach of the people.
Facts:
In the name of protecting public order, severe movement and internet restrictions including suspension of mobiles, landlines and internet services were imposed in the Jammu and Kashmir region on 4th August, 2019. This was followed by the Indian Government issuing the Constitution (Application to Jammu and Kashmir) Order, 2019, which revoked Jammu and Kashmir of its special status offered by Article 370 of the Indian Constitution. Consequently, Section 144 was imposed throughout the territory to maintain peace and security in the state.
The Petitioner, Ms. Anuradha Bhasin, the Executive Editor of Kashmir Times (Srinagar Edition) challenged the internet shutdown and movement restrictions in light of being violative of right to freedom of press and profession incorporated under Article 19 of the Indian Constitution, which guarantees freedom of speech and expression and freedom to carry any trade or occupation in the country.
A similar petition was filed by Ghulam Nabi Azad, Indian politician of the Indian National Congress and current Leader of Opposition in Rajya Sabha, seeking issuance of an appropriate writ to set aside or quash any orders, notifications, directions or circulars issued by the Government by virtue of all the modes of communication that have been shut down. Moreover, Petitioners also sought to issue directions for enabling environment for the media to practice their profession and ensuring free and safe movement of reporters and journalists so they can exercise their right to freedom of speech and expression, and right to movement.[i]
The two petitions were merged[ii] and brought before the Supreme Court with due submissions and documentations.
Issues:
- Whether the Government can claim exemption from producing all the orders which are passed under Section 144, CrPC and other orders under the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights enshrined under Part III of the Constitution?
- Whether the Government’s action of prohibiting internet access is valid?
- Whether the imposition of restrictions under Section 144, CrPC is valid?
- Whether the freedom of press of the Petitioner was violated due to the restrictions?
Judgment:
The Court held that suspending internet services indefinitely is impermissible and declared the internet to be essential in today’s life. The act was also not applicable to the situation in Kashmir, where this state of affairs has been continuing for more than 5 months. Consequently, the Court directed the Respondents to publish all orders concerning the restrictions, including the restrictions over the internet and stated that Government cannot contend any exception on order which is passed under Section 144 of Criminal Procedure Code.
The only relief granted immediately was a direction given to the State to assess all orders suspending internet services.[iii] In addition to that, direction was given to allow Government websites, banking facilities, hospitals services and other essential services in those regions, where the internet services are not likely to be restored immediately.
Furthermore, the court held that the prohibition for accessing to the internet will only be valid in certain circumstances only otherwise it will cease to exist. Such restrictions affect the Fundamental Rights of the people, therefore the court ordered to follow the test of Proportionality to ensure that no kind of violation of natural justice exists.
Critical Analysis:
It is a fact that the Internet has become an integral part of life. The judgment fairly laid down by directing suspension on internet shutdowns while directly emphasizing principles of proportionality, necessity and reasonableness. Additionally, when a question was raised before the Court that the Government can claim exemption from producing all the orders passed under Section 144, CrPC, then the people have the right to know on which grounds such impositions and bans are applied. This is because power can be misused by the Government or the State for their own benefit.
The Court has allowed imposing complete restriction on freedom of speech and expression which can be misused by the government to suppress any voice which reasonably questions the actions of the government. Even though the Government can impose reasonable restrictions, it is only if they fall under the ambit of Article 19(2) of the Indian Constitution. Reasonable is limited to the interest such as sovereignty, integrity, security, friendly relations with the foreign states, public order, decency or morality or contempt of Court, defamation or incitement to an offence, although it also includes complete restriction however only in appropriate cases.
The main contribution of the judgment is in expounding the doctrine of proportionality. While exercising the power under Section 144, the Magistrate is bound to balance the rights and limitations which is based on the principle of proportionality and should apply the least intrusive measure. The judgment also emphasized that a free of the press was a sacred right within the right to free speech and expression. The restricted orders should not be acceptable because it is an abuse use of power under the Constitution of India. Suspension Rules does not provide for any publication of the orders, the Court stated that public availability of a government order is a settled principle of equity and of natural justice, particularly if an order affects lives, liberty and property of people.
REFERENCES:
[i] Bhasin vs. Union of India, Global Freedom of Expression, Columbia University, https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
[ii] Manu Sharma, Lawnomy by NLU Grade, Case Brief: Anuradha Bhasin v. Union Of India, https://www.lawnomy.com/post/case-brief-anuradha-bhasin-v-union-of-india
[iii] Rishita Gupta and Varsha Agarwal, Anuradha Bhasin vs. Union of India – Case Analysis, https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/#Conclusion
