Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

Citation:(2020) 3 SCC 637

Facts of the Case

^[1]On 4 August 2019, just before the abrogation of Article 370, the Government of India imposed a complete communication lockdown in Jammu and Kashmir. Internet services, mobile networks, and landlines were suspended, and Section 144 CrPC was invoked to prohibit public assembly.

These measures were taken purportedly to prevent violence, unrest, and potential terrorist activity in light of the sensitive political developments.

On August 10, 2019, Anuradha Bhasin, Executive Editor of the Kashmir Times, filed a writ petition under Article 32 of the Constitution in the Supreme Court. She challenged the curbs on press freedom and access to the internet, contending that these restrictions severely hampered journalistic activities and violated fundamental rights under Articles 19(1)(a), 19(1)(g), and 21 of the Constitution.

Alongside, Ghulam Nabi Azad, a senior political leader, also filed a separate petition challenging the restrictions, particularly Section 144 orders, on the grounds that they curtailed civil liberties without valid justification.

The petitioners argued that the government’s orders were not published, lacked transparency, and failed to meet the tests of necessity and proportionality.

Anuradha Bhasin, Executive Editor of Kashmir Times, filed a writ petition under Article 32 of the Constitution, contending that the blanket restrictions had severely impacted freedom of the press and the public’s access to information.

Issues Raised

1) Whether the restrictions violated freedom of speech and expression under Article 19(1)(a).

2)Whether the indefinite suspension of internet services was constitutionally valid.

3) Whether the application of Section 144 CrPC was justified.

4)Whether non-publication of orders violated principles of natural justice.

Arguments of the Petitioner

• The petitioner argued that the freedom to publish and disseminate news was completely thwarted by the communication blockade, violating Articles 19(1)(a) and 19(1)(g).
• She pointed out the absence of official written orders, making it impossible to legally challenge the actions.
• It was contended that indefinite restrictions were disproportionate and had a chilling effect on press freedom.

Arguments of the Respondent

• The Union of India defended the measures as preventive steps necessary in light of security concerns surrounding the abrogation of Article 370.
• It was claimed that internet shutdowns were essential to curb misinformation and incitement.
• The government argued that national security considerations justified curtailment of rights in exceptional situations.

Case Laws Cited

A) ^[2]Maneka Gandhi v Union of India (1978) 1 SCC 248 – Held that any restriction on personal liberty must be just, fair and reasonable.

B) ^[3]Shreya Singhal v Union of India (2015) 5 SCC 1 – Recognised that freedom of speech applies to online platforms as well.

C) ^[4]Romesh Thappar v State of Madras AIR 1950 SC 124 – Declared that freedom of the press is an essential part of democracy.

D) ^[5]S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574 – Restrictions on free speech must have proximate and direct nexus to public disorder.

E) ^[6]PUCL v Union of India (1997) 1 SCC 301 – Recognised right to communication and privacy in the context of surveillance and telephone tapping.

Ratio Decidendi

The Court laid down the following principles:

• Internet access is protected under Article 19(1)(a) (freedom of speech) and Article 19(1)(g) (freedom of profession), subject to reasonable restrictions.
• Indefinite suspension of internet services is unconstitutional under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
• Orders suspending the internet or imposing Section 144 must be published and subject to judicial review.
• Executive action must adhere to the principle of proportionality, and cannot curtail rights in an open-ended or arbitrary manner.

It can thus be elaborated in the following manner:

A) Freedom of Speech and Internet Access

The Court held that freedom of speech and expression under Article 19(1)(a) includes the right to access the internet as a medium for exercising that freedom. While the internet is not a fundamental right by itself, using it to exercise constitutional rights is protected under the Constitution. Thus, any restriction on internet access must meet the tests of legality, necessity, and proportionality.

B) Reasoned and Transparent Restrictions

It was ruled that government orders imposing restrictions, especially under Section 144 CrPC or the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, must be published and subject to judicial scrutiny. The absence of publication of such orders was found to be inconsistent with democratic principles and natural justice.

C) Proportionality of Restrictions

The Court reaffirmed that restrictions on fundamental rights must be proportionate, i.e., they must have a legitimate aim, be suitable and necessary, and be the least restrictive means to achieve the objective. Blanket bans or indefinite restrictions without periodic review violate this principle.

D) Time-bound Review of Internet Shutdowns

The Court emphasized that internet shutdowns must be temporary and subject to periodic review by a Review Committee under the 2017 Rules. Indefinite suspension of internet services is impermissible under constitutional principles.

E) Use of Section 144 CrPC

The Court clarified that Section 144 cannot be used arbitrarily to stifle legitimate dissent or curtail civil liberties unless there is an actual threat to public order. Authorities must provide specific reasons and must avoid repetitive or indefinite use of such powers.

Judgment

The Supreme Court did not order immediate restoration of services, but directed that:

• All shutdown orders must be published.
• Restrictions under Section 144 must be based on objective evidence, not used as a tool for suppressing dissent.
• Internet suspension orders must be temporary, subject to review every seven days, as per the 2017 Rules.
• The verdict laid down guidelines to ensure future transparency, accountability, and proportionality in such cases.

On January 10, 2020, a three-judge bench of the Supreme Court of India, comprising Justice N.V. Ramana, Justice R. Subhash Reddy, and Justice B.R. Gavai, delivered the judgment.

It can be summarised in the following manner:

1. Right to Internet as a Means to Exercise Fundamental Rights

The Court recognised that freedom of speech and expression under Article 19(1)(a) and the freedom to practice any profession or carry on any occupation, trade or business under Article 19(1)(g) can be exercised through the internet. Therefore, restrictions on internet access affect the enjoyment of these rights and must conform to constitutional safeguards.

2. Suspension of Internet Must Be Lawful and Proportionate

The Court held that internet shutdowns must be:

1. Imposed only under law, specifically under the Telegraph Act, 1885 and the 2017 Suspension Rules.
2. Temporary and subject to review every seven working days by a competent Review Committee.
3. Proportionate to the threat faced, and cannot be indefinite.

3. Requirement of Publication of Orders

The Court stressed that government orders imposing restrictions must be published and accessible to the public so that they can be challenged legally. The non-publication of orders was held to be inconsistent with democratic accountability and the rule of law.

4. Section 144 CrPC Cannot Be Used Arbitrarily

The Court ruled that Section 144 CrPC can be used only in cases of actual threat to public order, and not as a tool to suppress dissent. Authorities must apply their mind, record reasons, and ensure that such orders are not excessive or repetitive.

5. Judicial Review and Accountability

The Court underlined the importance of judicial review over executive orders imposing restrictions on fundamental rights. It directed that all existing suspension orders and Section 144 orders in Jammu & Kashmir be reviewed immediately and that any further restriction must adhere to the principles laid down.

6. No Express Direction to Restore Internet

Interestingly, the Court did not issue a direct order to restore internet services in Jammu & Kashmir. Instead, it left it to the government to review the restrictions in light of the legal principles laid down in the judgment.

Conclusion

This case marked a pivotal moment in Indian constitutional jurisprudence, especially regarding digital rights. Although the Court did not strike down the shutdowns directly, it affirmed that access to the internet is integral to the exercise of fundamental rights.

The Supreme Court, in Anuradha Bhasin, laid down significant constitutional principles to ensure that restrictions on fundamental rights, especially through internet shutdowns and prohibitory orders, are lawful, transparent, proportionate, and subject to judicial review. While the Court stopped short of ordering the immediate restoration of internet services, it reinforced the idea that freedom of speech and trade through the internet is constitutionally protected, and arbitrary, indefinite restrictions are impermissible in a democracy governed by the rule of law.

By insisting on publication of orders, periodic review, and judicial scrutiny, the judgment added substantive safeguards against arbitrary executive power. It is widely regarded as India’s first major verdict on internet freedom, establishing a foundation for digital constitutionalism in the country.

Reference(s)

• Maneka Gandhi v Union of India (1978) 1 SCC 248.
• Shreya Singhal v Union of India (2015) 5 SCC 1.
• Romesh Thappar v State of Madras AIR 1950 SC 124.
• S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574.
• People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301.
• Anuradha Bhasin v Union of India (2020) 3 SCC 637.

[1] Anuradha Bhasin v Union of India (2020) 3 SCC 637.

[2] Maneka Gandhi v Union of India (1978) 1 SCC 248.

[3] Shreya Singhal v Union of India (2015) 5 SCC 1.

[4] Romesh Thappar v State of Madras AIR 1950 SC 124.

[5] S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574.

[6] People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301.