Anuradha Bhasin v. Union of India

Citation:- Writ Petition (Civil) no. 1031 of 2019

Bench:-  

              N.V. Ramana and V. Ramasubramanian

Introduction

The legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution. This issue begins right from 05.08.2019, when Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367, the Interpretation of it in its application to the State of Jammu and Kashmir.

The issue begins right from the date 05.08.2019, when Constitutional Order no.272 was issued by the President of the India, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 of the Constitution of India, the Interpretation of it in its application to the State of Jammu and Kashmir. Subsequently, the trip of the outsiders was cut short and arrangements were made for them to go back, educational institutions and oces were also shut down until further orders. District Magistrates, comprehends breach of peace and tranquillity, and hereafter imposed restrictions on movement and public gatherings by applying Section 144 of Cr.P.C. On date 04.08.2019, internet services, mobile connectivity and landline were shut down until further orders will be there.

Facts of The Case

Mobile and broadband Internet services were suspended in Jammu and Kashmir on August 4, 2019 prior to the repealing of Article 370 of the Constitution of India. A petition was moved by Anuradha Basin, the executive editor of Kashmir Times. This petition challenged the curbing of media freedom in the state. The petition claimed that the media in the rest whileas well as state cannot practice their profession owing to the internet as well as telecommunications shutdown in the state. A similar petition was moved by Gulam Nabi Azad seeking issuance of an appropriate writ to set aside, quash any orders, notifications, directions or circulars issued by Government of India under which all or any modes of communication have been shut down. Further an appropriate writ was asked to be issued which would immediately restore all modes of communication including mobile, internet and landline services throughout the state. so that the media could practice its profession

Legal Provisions involved in The Case

  • Constitution of India: Article 19(1)(a) and Article 19(1)(g)
  • Code of Criminal Procedure, 1973: Section 144
  • Information Technology Act, 2000
  • Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009
  • The Telegraph Act, 1885
  • The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

Issues Raised In The Case and Reasoning of The Court

Issue 1:

Whether the Right of freedom of speech and expression and Right of freedom to practise 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?

Right of Freedom of speech and expression and right to 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 of India.

The Supreme court held that freedom of speech and expression through the internet is one of the integral parts of Article 19(1)(a). 

  • Supreme court stressed upon the prior ruling in the case of Indian Express V. Union of India which declared freedom of print medium is an essential right provided under Article 19(1)(a) of the Constitution . 
  • Subsequently, in the case of Odyssey Communications Pvt. Ltd. V. Lokvidayan Sanghatana, it was held by Supreme Court that the right of citizens to exhibit films is now protected under Article 19(1)(a) of the Constitution of the India.

Internet is one of the fundamental means to broadcast information and hence freedom of speech and expression through the internet is a fundamental right under the Article19 (1). Although the government can impose reasonable restriction and only if they are following Article 19(2) of the Constitution. Reasonable restriction 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 only.

 The Court held that: The Right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), “using the medium of internet is constitutionally protected”. This proclamation would entail that any curtailment of internet access has to be reasonable and within the boundaries lay down by Article 19(2) and 19(6) of the Constitution of India. The court would not only observe that while ensuring peace and tranquility, but there also is not an excessive burden on freedom of speech and expression. 

Issue 2:

Whether the freedom of the press of the Petitioner in Written Petition (Civil) No. 1031 of 2019 was violated due to the restrictions?
Court said Freedom of press of the Petitioner in Written Petition (Civil) No. 1031 of 2019 was not violated due to the restrictions imposed. 

The Court rejected this plea.

 The Court began by elaborating on freedom of press and mentioned the case of Channing Arnold v. The Emperor, a Privy Council judgment which for the first time recognized the freedom of press. It is unquestioned that freedom of the press is one of the quintessential features of a democracy, which is very well protected by the Constitution of India under Article 19 (1) (a). 

The petitioner failed to provide any evidences that the orders passed by the state which imposed restrictions on the freedom of press including publication of newspaper and their distribution. Therefore the court couldn’t discover whether such a claim was legitimate or not. Since then the petitioner has resumed publication. Hence the court held it to be not violated and believed the government to be taking care of the freedom of the press.

Issue 3:

Whether the imposition of restrictions under Section 144, Criminal Procedure of Code (CrPC) was valid?

 Whether the Government can claim exemption from producing all the orders passed under Section 144, Criminal Procedure of Code (CrPC)?

 The imposition of restrictions under Section 144, CrPC were not valid. The Government cannot claim exemption from producing all the orders passed under Section 144, CrPC. 

The Court held that the power of any act or authority cannot vanquish legitimate expression of opinion or grievance or exercise of any democratic rights. This section of CrPC can only be imposed in case of an emergency and not for the prevention of instruction or injury to any lawfully employed.

 In Ram Manohar Lohia v. State of Bihar, the Court has distinguished between ‘law and order’ and ‘public order’, former being the larger circle and comprising latter in its ambit. Therefore mere disturbance in the law and order of the state may not necessarily lead to a breach of public order. Only the magistrate and the state have the right to decide whether there is a likelihood of threat to public peace or not. 

No person should be deprived of his liberty unless it is dangerous and therefore repetition of the imposition of such orders would be a clear abuse of power of the Government. The court held that the state had to publish the order placing restrictions to be imposed before the court. It had cited docility in determining the legality of the restriction imposed when the state refused to produce the order before the court. The state must provide all the relevant information necessary which is needed in nature. As per the interpretation of Article 19 (1)(a), freedom of speech and expression includes right to information also. The state has no right to pass such law which merely based on apprehension of the danger. Hence, the court said this cannot be a valid ground or reason to refuse to produce the order.

Issue 4:            

Whether the Government’s action of prohibiting internet access is valid or not?
Government’s action of prohibiting internet access is not valid

The Court highlighted that it had to be consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown in a state. 

The procedural mechanism has two components. 

  • First, there is a contractual component between Internet Service Providers and the Government. 
  • Second, there is the statutory component as mentioned under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act. 

The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the restriction of internet contingent on certain safeguards. Addition to this Section 5(2) of the Telegraph Act, 1885 permitted suspension orders only in case of a public emergency or for the safety of the public. Although to pass such an order the court must look into  determination of the existence of emergency is must required. 

In case PUCL v. Union of India. The Court laid down that for a suspension order to be passed by it, there should be a “public emergency” or for it to be “in the interest of public safety”. The court said that the meaning of the phrase “public emergency” can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it.

The suspension rules did not explicitly mention the maximum duration to which a suspension order can be expended. Hence, it is up to the Review Committee to determine the duration and to make sure it does not exceed beyond such period which is necessary in nature.

Judgment 

  • The court held that the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC. 
  • The court declared the internet to be essential in today’s life and thereby freedom of speech and expression and freedom to practice any profession, occupation or trade on the internet is a part of fundamental right under Part III of the Constitution.
  • Furthermore, the court held that the prohibition for access to the internet will only be valid in certain circumstances only otherwise it’ll cease to exist. Such impositions act the Fundamental Rights of the people, therefore the court ordered to follow the test of Proportionality to satisfy that no kind of violation of natural justice exists. 
  • The court did not remove the restrictions on internet and movement of the citizens, however, the judgment deliver widened the interpretation of freedom of speech and expression by including the right to access the internet which was an essential part of the Article which could only be restricted in the situation of national security. 
  • The judgment did not provide immediate relief to the citizens acted due to these orders but laid down principles for future suspension orders and their procedure to prevent the state for abuse of power. This is a solution for further issues. 
  • The Internet has become a tool for the spreading a piece of important news or is necessary for a two-way conversation. It has become an integral part of the life of people.

Conclusion

 In a situation such as todays, the circumstances of corona virus cause lockdown in country, wherein because of internet connection students all over the world can have access to education even after staying at home, people around the world can work and make money for their living. In a situation such as this internet plays a crucial role, which now has become a right in the interpretation of Right of Freedom and expression under Part III of the Indian Constitution.

Reference

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