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ANURADHA BHASIN v. UNION OF INDIA

(2020) 3 SCC 637


Case name- Anuradha Bhasin v. Union of India combined with Ghulam Nabi Azad v. Union

of India

Case no.- Writ Petition (Civil) No. 1031 of 2019 combined with Writ Petition (Civil) No.

1164 of 2019

Equivalent Citations- (2020) 3 SCC 637, 2020 SCC OnLine SC 25, AIR 2020 SC 1308

Court- Supreme Court of India (Civil Original Jurisdiction)

Bench- N. V. Ramana, R. Subhash Reddy and B. R. Gavai, JJ.

Petitioners- Anuradha Bhasin and Gulam Nabi Azad

Respondents- Union of India & Others

Judgment Date- 10th January, 2020


INTRODUCTION

This is a case which had made headlines, as it was the case where Internet shutdown, at the backdrop of scrapping of Article 370 of the Constitution of India, in the State of Jammu and Kashmir was challenged.


FACTS OF THE CASE

  1. First petitioner, Anuradha Bhasin was the editor and publisher of the newspaper ‘Kashmir Times’ whereas Second petitioner, Mr. Gulam Nabi Azad was leader of opposition of Rajya Sabha hailing from the constituency of Jammu and Kashmir.

  2. Following restriction were imposed by respective authorities in the Jammu and Kashmir Valley-

  3. Security advisory released by the Civil Secretariat, Home department of Govt. of Jammu and Kashmir for the tourists to curtail their stay and make arrangements for return.

  4. On 4th August 2019, mobile phone networks, internet services, and landline connectivity were discontinued.

  5. On 5th August 2019, the District Magistrates imposed restrictions on movements and public gatherings under Sec. 144 of CrPC with a view of avoiding the situations of breach of peace in the valley as a repercussion of the order of the President of India scrapping the special status given to the state of Jammu and Kashmir.

  6. Due to above, both the petitioners found their rights under Article 19(1) curtailed against which both the petitioners approached Supreme Court under Article 32 for quashing of the aforesaid orders/ notification imposing restrictions.


ISSUES OF THE CASE

  1. Whether the freedom of speech and expression and freedom to practise any profession over the Internet is a part of the fundamental rights guaranteed under article 19(1) (a) and 19(1)(g) of the Constitution?

  2. Whether the Government’s action of prohibiting internet access is valid? [1]

  3. Whether the imposition of restrictions under Section 144, CrPC are valid?[2]

  4. Whether the freedom of press of the first petitioner was violated due to the restrictions?[3]


CONTENTIONS OF PETITIONERS

  1. The Internet has become the soul in the current era for freedom of speech. Hence, it is absolutely essential for modern press as well. She also contended that there is absence of rationale on the part of the government for suspension of the internet.

  2. Proportionality tests should be applied to see whether restrictions on fundamental rights of citizens are reasonable. It was also contended that future repercussions such as fear in the minds of citizens should also be given due weightage while applying such proportionality. There has to a proper balance between the measures necessary to curb terrorism and rights of citizens of the country.

  3. Second petitioner argued that to pass an order under Sec. 144 of CrPC, there must be a Law-and-Order situation which was not the case at the time. Further, these restrictions are not allowing him to visit his constituency which is a violation of his fundamental rights.


CONTENTIONS OF RESPONDENTS

  1. The restrictions were imposed while taking into account the background of terrorism in Jammu and Kashmir. The State is facing physical as well as digital cross border terrorism. Hence, the restrictions are necessary to fulfil the first and foremost obligation of the State i.e., Security of its citizens.

  2. Restrictions under Sec. 144 were imposed by respective magistrates who know the ground realities. Further, Sec. 144 is a preventive provision. It is impossible to impose selective restrictions on hand-picked individuals who might cause trouble hence imposing restriction under Sec. 144 is justified.

  3. Internet was not restricted in Jammu or Ladakh region. Social media can be an effective medium of inciting violence. Hence, to reduce such possibilities, the Internet is shut down only in violence-prone areas. Gradually, the restrictions are being relaxed.


OBITER DICTA

  1. A decision which curtails fundamental rights without appropriate justification will be classified as disproportionate.


JUDGMENT IN POINTS

  1. Freedom of Expression using the Internet enjoys protection under Article 19(1)(a) while freedom to practice any profession over the medium of internet enjoys protection under Article 19(1)(g).

  2. Indefinite suspension of the internet is not permissible. Complete suspension of telecom services must be considered by the State only if unavoidable. If the state wishes to further such complete suspension, the State has to assess the existence of alternative and less intrusive remedy.

  3. Sec. 144 of CrPC can be exercised when there is present as well as apprehension of danger. However, repeated orders under Sec. 144 of CrPC will amount to abuse of power.

  4. Government is bound to publish all orders of restriction and should follow the principle of proportionality to adopt less restrictive measures.

  5. The court rejected the plea of the first petitioner that restriction on movement and communication curtailed rights under Article 19(1)(g) as the petitioner failed to produce any concrete evidence to substantiate the claim.


RATIO DECIDENDI

  1. Orders under Sec. 144 of CrPC have direct consequence on fundamental rights which is why the Magistrates is bound to balance the rights and restrictions based on principle of proportionality.

  2. Substantive justice under the fundamental rights analysis is important but procedural justice cannot be sacrificed on the altar of substantive justice.

  3. Expression through the internet has gained contemporary relevance and the internet is one of the major means of information diffusion.


CONCLUSION

The Judgment given by the Supreme Court focused on the Principle of Proportionality. Here, the main question was that- The judiciary gives preference to which out of the two- Liberty of citizens or Security of the country?

From the judgment, it is clear that the court has tilted its opinion a little more towards the security aspect as it has allowed Complete prohibition of freedom of speech, though under extraordinary circumstances. The court further said that, order under Sec. 144 CrPC can also be issued in case of apprehension of danger. The possibility of misuse of these observations in future cannot be ruled out.

However, inclusion of the Internet under the fold of rights under Article 19(1) is the need of the hour which has contributed to upgradation of the interpretation of the law according to changing times.


Footnotes

  1. taken from original Judgment dt. 10th Jan, 2020 penned by Justice N. V. Ramana.

  2. Supra, 1.

  3. Supra, 1.


REFERENCES

Original Judgment of Anuradha Bhasin v. Union of India, penned by Justice N. V. Ramana

Accessed through-

  1. Indian Kanoon portal, < https://indiankanoon.org/doc/82461587/> accessed on 02.07.2022

  2. https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf


Legislations

  1. Constitution of India

  2. Code of Criminal Procedure, 1973

Articles/ Blogs

  1. Ananya Pandey, “Case Comment on Anuradha Bhasin v. UOI, 2020” (Law Column, 27 May 2020), <https://www.lawcolumn.in/case-comment-on-anuradha-bhasin-v-uoi-2020/> accessed 02 July 2022.

  2. Rishita Gupta and Varsha Agarwal, “Anuradha Bhasin v. Union of India- Case analysis” (ipleaders, 15 April 2020), <https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/https://www.scconline.com/blog/post/2020/12/08/freedom-rights-cannot-armour-those-who-promote-incite-violence-15-notable-excerpts-on-hate-speech-from-supreme-courts-verdict-in-amish-devgan-case/> accessed 02 July 2022

  3. Divya Gautam, “Anuradha Bhasin v. Union of India” (Lex Gaze), <https://www.lexgaze.com/case-commentaries/anuradha-bhasin-v.-union-of-india/n3c-s11/> accessed 02 July 2022



This article is written by Utkarsha Deshpande of Kishinchand Chellaram Law College, Mumbai.