|CITATION||Anuradha Bhasin v UoI [WP(C) 1031/2019] and Gulam Nabi Azad v UoI [WP(C) 1164/2019|
|Court||Supreme Court of India|
|Bench||Justice N.V. Ramana and Justice V. Ramasubramanian|
|Petitioner||Anuradha Bhasin and Gulam Nabi Azad|
|Respondent||Union of India|
Jammu and Kashmir is a long-disputed Indian territory sharing its borders with the country, Pakistan. Under the Article 370 of the Constitution of India, J&K enjoyed the ‘special status like Indian citizens domiciled in other states of the country were constitutionally restricted to purchase land as well as property in the territory. So, on August 5th, 2019, the Government of India passed a constitutional order titled- Constitution (Application to Jammu and Kashmir) Order, 2019. This order officially scrapped off the special status of J&K and made all the orders, legislation and provisions applicable to J&K just like the rest of the country. Even before any such order was passed, the internet and mobile services were shut down. And post-order the restrictions on online communication and freedom of movement only severed. Tourists were advised to leave, schools and offices were ordered to remain closed, mobile phone networks, internet and landline connectivity were all shut.
Our lives begin to end the day we become silent about things that matterMartin Luther King Jr.
Background and Facts
Hereafter the restrictions limited the movement of journalists to travel and subsequently to publish, the right to freedom of expression was compromised. Three petitions followed this situation, first by Anuradha Basin, the executive editor of Kashmir Times. It challenged and brought to the Court’s attention the issue of the curbing of media freedom in the state. She claimed that one cannot practice their profession owing to the internet as well as telecommunications shutdown in the state of J&K. The second 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/any modes of communication have been shut down. The third writ was asked to be issued which would immediately restore all modes of communication including mobile, internet and landline services in the state of J&K.
The petition was moved by Ms Anuradha Bhasin, the editor of the Kashmir Times, Srinagar Edition. According to her, the Internet is an essential item for the modern press and that by making it inaccessible, authorities have forced the print as a media to come to “a grinding halt.” There was no publication of her newspaper since 6th of August. She claimed that the government failed to consider whether the move of internet shutdown was reasonable and proportionate to the aims it pursued. The state-imposed restrictions on Fundamental Rights. The restrictions when imposed were claimed as temporary in nature but lasted over 100 days. It is now the longest ever shutdown imposed in a democracy.
In the second writ, the petitioner Mr Ghulam Nabi Azad (a Member of Parliament) argued that such restrictions on movement and internet must be based on “objective reasons and not merely on conjectures”. He urged the authorities to produce such an important ‘order’ publicly and not keep it a secret and also to justify the restrictions under the light of an “internal disturbance” or “external aggression” under Article 356 of the Constitution. Because neither of the two cases was witnessed. He believed that internet shutdown, the did not just hinder the freedom of expression of citizens but also the right to trade and ability of political representatives to communicate efficiently with their constituents.
The third petition was withdrawn eventually but the Court noted that such restriction favours the probability of causing harm even to ordinary law-abiding citizens. India’s Attorney General and Solicitor General defended the case.
The Main issues framed by the Apex Court were –
- Could the Government claim exemption from producing all orders under Section 144 of CRPC?
- Whether freedom of carrying on trade or occupation through the internet is protected by Constitutional Article 19 (1)(a) and 19 (1)(g)?
- Whether prohibiting internet service by the Government valid?
- Where the imposition of restrictions under Section 144 of the Code of Criminal Procedure valid?
- Was the Freedom of the Press of the petitioner(Anuradha Bhasin) violated due to the restrictions imposed on the State?
- The Information Technology Act,2000[iv]
- the Code of Criminal Procedure, 1973[v]
- The Suspension Rules under Section 7 of the Telegraph Act[vi]
- Section 5(2) of the Telegraph Act[vii]
The Supreme Court pronounced judgment in Anuradha Bhasin v UoI and Gulam Nabi Azad v UoI on January 10, 2020. The judgment extensively laid down the law on the issue of Internet shutdowns in the country, India. The judgement began with the sentence taking its course into a beautiful paragraph- “Although cherished in our heart as a “Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable.” The issues were widely discussed further, both the sides deliberated on it and a popular judgement came into existence. Let’s understand the contentions-
Firstly on the issue of Whether the Government can claim exemption from producing all the orders for the restrictions?
The first and foremost point noted in this regard was how the legality of restrictions like an internet shutdown could never be understood unless authorities produced legitimate orders. The precedent in Ram Jethmalani v. Union of India[viii], was cited and the Court explained that the State was under an obligation to disclose necessary information to satisfy the right to remedy provided in Article 32 of India’s Constitution[ix].The Court added, “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.[x]”The issue of protecting the fundamental rights of citizens by the state was heavily discussed and Article 19 was also noted. The Court emphasized that no order/law could be passed in secret because of an anticipated danger (the defence used ‘anticipated terror attacks’ as an excuse to internet shutdowns)in a democratic nation.
Hence it was held that- The State was under obligation to ensure that any law restricting fundamental rights had to be made public unless provided a public interest reason for such secrecy. The court although had powers to decide what portions of the order could be kept hidden from the public at large.
Secondly, on the issues of whether the restrictions affect freedom of movement, freedom of speech and expression and right to free trade and vocation?
Again the Court threw light upon the fact that freedom of expression was guaranteed under Article 19 of India’s Constitution and it was very much extended to the internet. In the cases Indian Express v. Union of India[xi], and Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, the Supreme Court held that freedom of expression protects the freedom of print medium and it was a collective right of citizens to screen films as a part of “freedom of expression”. Internet was vital these days to trade and some businesses are totally dependent on it, was noted by the Court, therefore the freedom of trade and commerce by using the internet was also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6). Although the Court did not give away access to the internet as a fundamental right, primarily because none of the party to the case made that kind of an argument.
The geopolitical context of the restrictions was also discussed upon as the majority of the defence laid the case on it. Court agreed with the Government of India that Jammu and Kashmir had been ridden with terrorism and was a long disputed region. Now, in modern times even terrorists relied heavily on internet connectivity to plan war crimes. Accordingly, the Indian authorities argued that the “war on terrorism” required imposition of the restrictions “to nip the problem of terrorism in the bud.[xii]”
The Court reviewed cases dealing with freedom of expression in wars like Vallandigham, (Vallandigham 28 F. Cas. 874 (1863), when Mr Vallandigham was found guilty and as he publicly called the American Civil War as “‘wicked, cruel and unnecessary.” In Abrams v. the United States, 250 U.S. 616 (1919), Justice Holmes wrote that the power to the United States government can punish speech that produces or is intended to produce a clear and imminent danger and that this power “undoubtedly is greater in time of war than in the time of peace because war opens dangers that do not exist at other times.[xiii]”In the post 9/11 context, US Attorney General Ashcroft criticized people questioning the destruction of fundamental rights as a consequence of terror war. Quoting “to those… who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies…[xiv]”
Just as the First Amendment of the United States law establishment, even the Indian Constitution allows the Government to restrict freedom of expression, but with the conditions according to the Constitution of India that such restrictions must be proportionate. The Court stressed that the standard of proportionality was key to ensuring that a right is not restricted beyond what is necessary[xv]. A proper outline was also given in this regard-
- The restriction should be legitimate, it means the goal and reason should be lawful and justified.
- The restriction must be necessary for all sense.
- The alternatives to any such restriction should be considered firsthand.
- The measure imposing the least restrictions should be opted for.
- This kind of restriction must be open to the branch of judicial review.
Thirdly, on the matter of The legality of the Internet Shutdown. The State’s justification for a total ban on the internet reasoned that it did not have required technology to selectively block internet services and hence blocked it fully was not accepted at all. Because such acceptance would set a precedent for the state to ban such services whenever and in totality. It was brought to the Court’s attention that procedural as well as substantive elements, both were to determine the Constitutional legality of the internet shutdown. The procedural mechanism has two components. The Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act were studied to understand the procedural element. The court mainly focused on the latter.
The safeguards of internet suspension were described in the Suspension Rules of 2017 passed under Section 7 of the Telegraph Act. It was noted that suspension orders may be issued only by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. No lower rank official could do it, such suspension then had to go to the approval of the competent authority. Without approval, the suspension must be lifted within 24 hours was noted. The orders had to necessarily include reasons behind suspensions. Only unavoidable circumstances could justify the reasonableness of such suspension. According to Section 5(2) of the Telegraph Act, suspension orders were only permitted in situations like public emergency and the interest of public safety. The Court also opined that indefinite suspension is considered impermissible. Suspension Rules were silent on the duration of the permissible shutdown, hence the Court observed that the Review Committee had to determine the duration of such shutdown, provided the period doesn’t extend beyond what is necessary.
Fourthly, the Petitioners argued that to justify restrictions under Section 144 of the Cr.P.C, the State had to prove that there “would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquillity, and the Government could not have passed such orders in anticipation or based on a mere apprehension.” That “the volatile history, overwhelming material available even in the public domain about external aggression, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders under Section 144.[xvi]”
On the question of Freedom of the Press, the Court did not accept the Petitioners’ arguments that restrictions on movement and communication imposed in the state of J&K affected freedom of the press and journalists’ potent to fulfil their professional duties. The Court highlighted Channing Arnold v. The Emperor[xvii], where the Privy Council stated that-“the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject, in general, may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”Hence it was agreed upon that freedom of the press was valuable, sacred and important in a democratic country like ours but Court was not satisfied with the petitioner as they failed to offer evidence so as to conclude that any such restrictions actually hindered publishing of newspapers in Jammu and Kashmir.
Through this landmark judgement, Freedom of expression and the freedom to practice any profession online was declared as constitutionally protected by way of India’s Constitution. It was also claimed that Government could suspend the Internet but this action had consequences, very grieve and consequences, hence it had to be done in times of necessity and in a temporal limit, very carefully. Which the Government of India failed to do in this case. Thereby, the government had to lift such shutdown and also make it clear that restrictions under Section 144 of the Code of Criminal Procedure could not be used to suppress freedom of speech and expression and such will be subject to hard judicial scrutiny. A review of the state’s restrictions was ordered by the Court. A very positive side to this judgment is that the Supreme Court laid down the law on Internet shutdowns with a very high emphasis on proportionality and reasonableness. Issuance of reasoned orders was mandated along with the public record and it was made crystal clear that failure to do the former could result in judicial scrutiny. Nevertheless, if the government understood and adhered to all these aspects, reduction of arbitrary shutdowns would be possible in every way.
[i]W.P. (C) No. 1031 of 2019
[ii]W.P. (C) No. 1164 of 2019
[iii]W.P. (Crl.) No. 225 of 2019
[viii](2011) 8 SCC 1
[xi](1985) 1 SCC 641
[xv] Para 53
[xvi]Para 103 and 104
[xvii], (1914) 16 Bom LR 544