Anuradha Bhasin vs Union Of India (2020)

1. Case Information

• Case Name: Anuradha Bhasin vs Union Of India (2020)
• Citation: AIR 2020 SCC 637
• Court: Supreme Court of India
• Judges: Justice B. R. Gavai, Justice R. Subhash Reddy, Justice N.V. Ramana
• Date of Judgment: January 10, 2020
• Parties Involved:

Petitioners:

• Anuradha Bhasin: Executive Editor of the Kashmir Times, she argued that internet shutdowns prevented her from publishing her newspaper violating press freedom (Article 19(1)(a)) and the right to practice her profession (Article 19(1)(g).
• Ghulam Nabi Azad: A Member of Parliament, he filed a separate petition challenging restrictions that prevented him from communicating with his constituents and assessing the ground situation.

Respondents:

• Union of India & Jammu & Kashmir Government: The central and state governments defended the communication blackouts, asserting they were necessary due to security threats and to maintain public order following the abrogation of Article 370. They claimed the petitioners exaggerated the impact and that ground officials were best positioned to decide on security measures

2. Fact of the Case

In August 2019, amid heightened security concerns in Jammu and Kashmir, a security advisory was issued requesting tourists and pilgrims to curtail their stay in the region. Shortly thereafter, restrictions on public movement were imposed, and mobile networks, internet services, and landline connectivity were suspended across multiple districts as a preventive measure to maintain public order. On 5 August 2019, the President of India issued Constitutional Order No. 272, extending the application of all provisions of the Constitution of India to Jammu and Kashmir and thereby withdrawing the special constitutional status previously accorded under Article 370.

In anticipation of possible disturbances following this development, authorities invoked Section 144 of the Code of Criminal Procedure, 1973, restricting public gatherings and movement in various areas. The suspension of communication services and the continued restrictions on movement substantially limited access to information and impeded the exercise of free speech and professional activities. Aggrieved by the prolonged nature of these measures, writ petitions were filed before the Supreme Court under Article 32 of the Constitution, challenging the legality of the internet shutdown and the restrictions imposed under Section 144 CrPC as violative of fundamental rights guaranteed under Articles 19 and 21 of the Constitution.

3. Issues Raised

In   line   with   aforesaid   facts, the   following questions of law arose for the consideration of  the Supreme Court

• Whether   the   Government   can   claim   exemption   from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?
• Whether   the   freedom   of   speech   and   expression   and 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?
• Whether the Government’s action of prohibiting internet access is valid?
• Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
• Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

4.Arguments of the Parties 

• Petitioner’s Arguments: 

The petitioners argue that restrictions under Section 144 fail the constitutional test of reasonableness and proportionality under Articles 19(1)(a) and 19(1)(g), as no concrete evidence was placed on record to justify the apprehended threat to public order. They further contend that the indefinite suspension of internet services was procedurally flawed, overly broad, and imposed without exploring less restrictive alternatives, resulting in an unjustified infringement of fundamental rights.

• Respondent’s Arguments:

The respondents submitted that the restrictions were imposed in the interest of national security and public order, particularly to counter terrorism and prevent misuse of digital platforms, including social media and the dark web. Given the internet’s pervasive and instantaneous nature, a complete shutdown was considered more effective than selective blocking, and the measures adopted were claimed to be necessary and proportionate to the prevailing security situation.

The internet restrictions in Jammu and Kashmir were necessary to counter terrorism, given the internet’s boundless nature and potential misuse through social media and the dark web. A complete shutdown was deemed more effective than targeting specific websites. Claims of excessive stringency were unfounded, as the measures were proportionate to the security threat.

• Relevant Statutes: Article 19, Article 21, Article 32, Article 367, Article 370 of Constitution of India and Section 144 of Code of Criminal Procedure, Section 5, Section 5(2) of the Telegraph Act.
• Case Laws: K. S. Puttaswamy, (2017) 10 SCC 1, National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, Babulal Parate v. State of Bombay, AIR 1960 SC 51, Madhu Limaye v. Sub­Divisional Magistrate, Monghgyr, (1970) 3 SCC 746.

5.Decision of the Supreme Court

The court mandated that the government must publicize all orders imposing restrictions, including those affecting internet access, so that individuals may appropriately challenge these orders in suitable legal forums. While the government has the authority to suspend internet services, it is obliged to do so only temporarily, a requirement it failed to meet in this case. Consequently, the court directed the government to review and revoke any orders that lacked a temporary nature.

Additionally, the court emphasized that restrictions under Section 144 of the Code of Criminal Procedure (CrPC) cannot be utilized to stifle legitimate dissent. Such measures are subject to judicial scrutiny, and the state was instructed to reassess its decisions. It was further established that the constitutional rights to freedom of speech and expression, as well as the right to pursue a profession or business online, enshrined in Articles 19(1)(a) and 19(1)(g) of the Constitution, must only be limited when they pass the proportionality test.

Although the petitioner failed to present substantial evidence demonstrating a direct impact of the restrictions on press freedom, the court recognized their chilling effect. Acknowledging the essential role of a free press in a democracy, the court reminded the government to uphold this principle at all times. Thus, the court’s judgment strikes a balance between the state’s authority to impose restrictions and the citizens’ fundamental rights, advocating for transparency, proportionality, and judicial oversight.

6.Legal Reasoning

Fundamental Rights via Internet:

• The Court declared that freedom of speech and expression under Article 19(1)(a) and right to trade or profession under Article 19(1)(g) include the use of the internet as a medium. 
• Thus, any restriction on internet access must satisfy tests under Articles 19(2) and 19(6) i.e., be reasonable, necessary, and proportionate. 

Requirement to Publish Orders: 

• The Government must publish all orders imposing restrictions so that they can be legally challenged. 
• Secret or undisclosed restrictions violate natural justice and rule of law. 
• Referring to Ram Jethmalani v. Union of India, the Court reiterated that transparency is essential in cases affecting fundamental rights. 

On Section 144 Orders: 

• Section 144 CrPC cannot be used to suppress legitimate expression or dissent. 
• Such orders must be based on objective material, cannot be applied generally to the public, and must identify specific threats or persons. 
• The State cannot indefinitely rely on Section 144 to impose blanket restrictions over an entire area. 

Doctrine of Proportionality: 

• Any restriction on fundamental rights must pass the four-pronged test of proportionality: legitimate aim, necessity, rational connection, and least restrictive means. 
• The Court stressed the importance of “least restrictive” options, like blocking only social media instead of a total internet ban. 

On Press Freedom: 

• The Court recognized that press freedom is essential in a democratic society. 
• It acknowledged the chilling effect of communication blackouts on the media’s ability to function. 

No Blanket Power to Restrict: 

• The Court clarified that national security is important, but cannot be used as a blanket justification to bypass constitutional safeguards. 
• Authorities must justify restrictions based on actual threats, and courts retain jurisdiction to review such executive actions. 

Use of Technology in Rights Protection: 

• The Court emphasized that law must evolve with technology, and the internet is a critical enabler of rights, even if it is not a fundamental right in itself. 
• Referring to earlier cases like Shreya Singhal v. Union of India, the Court reiterated that freedom of expression covers all modern mediums including cyberspace. 

7.Conclusion

The Supreme Court’s verdict in Anuradha Bhasin v Union of India (2020) highlights the critical role of the Internet in modern communication, publishing, and professional activity. It affirmed that access to the Internet for exercising the rights to freedom of speech and expression, as well as the right to carry out trade, business, or any profession, is protected under Article 19 of the Constitution of India. The judgment sets a significant precedent in safeguarding digital rights and reinforces executive accountability. While the Court did not directly order the restoration of internet services, it established procedural safeguards for imposing communication restrictions and preventive orders under Section 144 CrPC. By subjecting such measures to periodic review and the proportionality test, the Court ensured they remain temporary, reasoned, and justifiable. Consequently, this ruling provides a guiding framework for future executive actions involving digital communication controls, underscoring that constitutional governance demands transparency, accountability, and continued judicial oversight.