Court: Supreme Court of India
Case No: Writ Petition (Civil) Nos. 1031 and 1164 of 2019
Citation: Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
Date of Judgement: 10.01.2020
Appellant: Anuradha Bhasin and Ors.
Respondents: Union of India (UOI) and Ors.
Bench: N.V. Ramana, R. Subhash Reddy and B.R. Gavai, JJ.
Counsel for Appearing Parties: K.K. Venugopal, AG, Tushar Mehta, SG, K.M. Nataraj, Vikramjit Banerjee, ASGs, Kapil Sibal, Huzefa Ahmadi, Dushyant Dave, Meenakshi Arora, Sr. Advs., Vrinda Grover, Sumita Hazarika, Nizam Pasha, Shadan Farasat, Jahnavi Sindhu, Shruti Narayan, Siddharth, Bhakat Gupta, Astha Sharma, Apar Gupta, Amjid Maqbool, Vrinda Bhandari, Abhishek Manchanda, Kajal Dalal, Devdutta Mukhopadhyay, Deepali Dwivedi, Soayib Qureshi, Rashmi Singh, Dhananjaya Sud, Advs., Rahilla & Yasmin, Fuzail Ahmad Ayyubi, Ankur Talwar, Rajat Nair, Kanu Agrawal, Ayush Anand, Anindita Barman, Shantnu Sharma, Bhuwan Kapoor, B.V. Balaram Das, Sudhakar Kulwant, Shashi Juneja, Satyajeet Kumar, Debasis Misra, Kundan Kumar Mishra, R.C. Paul Kanagaraj, Santan Ray Choudhari, Jagdev, Pareena Swarup, M.S. Vinayak, Samsuddin Khan Choudhary, Meera Bhatia, Rajnish Kumar, Alpana Sharma, Manav, Parvez Bashista, Sunil Kumar, Pradeep Kumar Kaushik, R. Sharath, Shashindra Tripathi, Narender Kumar Sharma, Jay Prakash Somani, Harvinder Chowdhury, Nishesh Sharma, Sandip Gorsi, Sahitya Singh Srivastava, Ekta Kalra, Anil Kumar and Anshuman Ashok, Advs.
Statutes: Code of Criminal Procedure, 1973 (CrPC) – Section 144; Constitution Of India – Article 19
Cases Referred:
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors.
National Investigation Agency v. Zahoor Ahmad Shah Watali Babulal Parate v. The State of Bombay and Anr.
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and Ors.
Ram Jethmalani and Ors. v. Union of India (UOI) and Ors.
Secretary, Ministry of Information and Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others
Shreya Singhal v. Union of India
Indian Express Newspapers (Bombay) Private Ltd. and Ors.. v. Union of India and Ors.
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and Ors.
Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr.
Narendra Kumar and Ors. v. The Union of India (UOI) and Ors.
Sushila Saw Mill v. State of Orissa and others
Pratap Pharma (Pvt.) Ltd. and another etc. v. Union of India and others
Dharam Dutt and Ors. v. Union of India (UOI) and Ors.
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors.
Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors
Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Limited and Anr.
Chintaman Rao v. The State of Madhya Pradesh
Status: Disposed off
Issues:
- Whether the Government can claim exemption from producing all the orders 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 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 were valid?
- Whether the freedom of press of the Petitioner was violated due to the restrictions?
Facts:
The Constitutional Order was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Code of Criminal Procedure.
Due to the said restrictions, the Petitioner claims that the movement of journalists was severely restricted. Aggrieved by the same, the Petitioners filed petition seeking issuance of an appropriate writ for setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality.
Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession.
Arguments by Appellant:
1. The restrictions do not satisfy the test of ‘reasonableness and proportionality to the aim pursued by them.
2. The restrictions imposed by virtue of Section 144 were passed on the apprehension that there is an imminent threat to law and order situation in the valley which was not the case as public order is not same as law and order and neither were at risk.
3. The State’s order of restricting internet services under the Suspension rules was not in compliance with the requisite procedure, implying the absolute non- application of mind.
4. The restrictions are overbroad and excessive in nature as the state failed to put least restrictive measures in place which deprive people from the lawful exercise of their fundamental rights.
Arguments by Respondent:
1. The restrictions were ‘necessary to prevent terrorist activities, taking into consideration the situation regarding cross- border terrorism and internal militancy. Even before Article 370 was revoked it was a subject of speculation.
2. Since the issue of national security is at stake, courts have limited jurisdictions to question the judgment of the officers in imposing pre-emptive measures.
3. There was never a blanket ban on internet services as internet services were not restricted in regions like Jammu and Ladakh.
4. The effects of the restrictions have been exaggerated by the petitioners as the individual movement had never been restricted and were imposed only in certain areas which were relaxed soon after
5. The free speech standards related to the newspapers are not very distinct from those of internet and hence it is not possible to ban only certain websites or parts of internet while allowing access
Judgement:
The court directed the respondents to publish all orders concerning the restrictions; including the restrictions over the internet .So, that people could duly challenge it before the appropriate forum.
Although the government can rightfully suspend internet access, it needs to do it on a temporary basis; which it failed to do in this case. Hence, the government was asked to review its suspension orders and lift those which were not on a temporary basis.
Restrictions under sec. 144 CrPC cannot be applied to suppress genuine expression of discontentment and are subject to judicial inquiry. Thus, the state was ordered to review its decisions.
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 protected by Article 19(1)(a) and Article 19(1)(g) of the constitution and that if, they are restricted , it should be done according to the proportionality test.
The court concluded that although the petitioner was unable to produce enough proof of a direct effect of the restrictions on press, there was certainly some chilling indirect effects on the freedom of press. The court highlighted the importance of freedom of press in a democracy and asked the respondents to respect it at all times.
Conclusion:
The internet is also a valid tool for trade and commerce. The globalisation of Indian advanced information and technology has opened up vast business avenues and transformed India into a global IT hub.
There was no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through the internet also fosters consumerism and the availability of choice.
Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).
