Authored By: Devipriya Joy
Mar Gregorios College of Law
Citation : Anuradha Bhasin v. Union of India, AIR 2020 SC 1308; (2020)3 SCC 637 (India).
Court : Supreme Court of India
Date of Decision : 10 January 2020
Bench Composition : Justice N.V. Ramana; Justice R. Subhash Reddy; Justice B.R. Gavai
I. Introduction
On August 5, 2019, the Government of India abrogated Article 370 of the Constitution of India which altered the status quo of Jammu & Kashmir as it was established by statutes. At the same time, Jammu & Kashmir experienced one of the most expansive communication restrictions ever imposed on a democratic nation. By terminating the entire internet infrastructure, all cellular communication systems and all landline communications were disabled. Furthermore, The Government of India imposed Section 144 CrPC, which prohibits public gatherings, on all citizens.[1][2]
Due to the interruption of the communications network that modern journalism requires, Ann Bhasin’s ability to publish her newspaper, Kashmir Times, was compromised completely. Both she and Ghulam Nabi Azad filed their writ petitions (under Article 32) challenging both the legal and constitutional validity of this prohibition imposed by the Central Government on the Supreme Court of India. On January 10, 2020, the Supreme Court delivered one of the seminal decisions in Indian constitutional jurisprudence, which has had a significant impact on the freedom of speech and expression via the use of the internet.
Unanimously, the Court concluded that:
First of all, exercising fundamental rights through social media (e.g., the Internet) constitutes an exercise of those rights as protected by the Constitution, including Article 19(1)(a)’s right of free speech/expression, Article 19(1)(g)’s right to carry out one’s profession or trade, etc.
Second, any order issued by the Executive limiting access to the internet must be proportionate to a legitimate purpose; those orders must be judicially scrutinised to ensure compliance with standards of fairness and reasonableness.
Third, restriction orders must be made available to the public so that affected individuals can seek judicial review, and restrictions on connectivity cannot be permanent.
This ruling is significant because while its most immediate impact will be in Kashmir, it also has national implications. For a full account of how often the internet is subject to shutdowns in India; according to Access Now Shutdown Tracker Optimisation Project (STOP), India leads the world in the number of shutdowns at an average of 80 shutdowns per year. Therefore, all of the 3 principles explained above will apply when the State faces future circumstances where it limits communication infrastructure to manage civil disorder/ dissent.[3]
2. Facts of the Case
The Jammu & Kashmir administration had issued an advisory asking tourists and pilgrims to vacate the region on August 4, 2019 suggesting constitutional changes were imminent regarding the status of Jammu and Kashmir. After this happened the Government of India issued Constitutional Order No. 272 which allows the entire Constitution of India to apply to the state of Jammu and Kashmir thus effectively repealing Article 370 of the Constitution Of India. Furthermore, the Jammu and Kashmir Reorganization Act (2019) separated the previous state of Jammu and Kashmir into two portions known as Union Territories. All District Magistrates within the region, pursuant to Section 144 of the Code of Criminal Procedure, which was enacted in 1973, passed notices, due to emergency circumstances that were threatening to public safety and order, and therefore under this circumstance, the total suspension of all communication networks, will also constitute one of the most substantial events associated with the previous two amendments as all communication networks i.e., telephone, cellular and internet were shut down as per regulations Suspension Rules enacted 2017, on August 4, 2019.[4]
Anuradha Bhasin is an Executive Editor for the Kashmir Times and has been a Journalist for more than 20 years; she has lost her ability to report directly. The Srinagar edition of her paper could not publish its contents on August 5th; after that, the internet was turned off making it impossible to publish any more editions. Mr. Ghulam Nabi Azad, a well-known politician from the area where these restrictions were placed upon them, also filed a petition stating that he was unable to communicate with his constituents due to the restrictions placed on them. Both petitions went to the Supreme Court under Article 32 and were consolidated before a three-judge panel.[5]
This case raises a basic procedural issue. The Government refused to give the Court the ordering documents relating to the restrictions placed on Ms. Bhasin and Mr. Azad under Section 144 of the Criminal Procedure Code or the Suspension Rules and claimed that this would be done under executive privilege on the basis of national security. This refusal to provide these restrictions presents the Court with the fundamental issue of a constitutional question as to whether or not an Executive can use its own orders to prevent the Judiciary from reviewing them to the detriment of the mechanism established by the Constitution for Judicial Review.
Legal Issues
The Supreme Court consolidated the issues raised in the petitions into three principal areas of inquiry:
Issue I -Transparency and Enforceability of Restriction Orders
Whether the Government may lawfully decline to place restriction orders before a constitutional court; and whether orders issued under Section 144 CrPC and the Suspension Rules give rise to an enforceable legal right in favour of affected persons.[6]
Issue II – Constitutional Protection of Internet-Mediated Rights
Whether the exercise of freedom of speech or expression and freedom to engage in trade or occupation through the medium of the internet attracts constitutional protection under Articles 19(1) (a) and 19(1)(g) of the Constitution; and, if so, whether the blanket suspension of internet services across Jammu and Kashmir was lawful and proportionate to the stated security interest.[7]
Issue III -Legality of Section 144 CrPC Orders and Press Freedom
Whether the repeated imposition of orders under Section 144 CrPC was lawful; and whether the communication blackout violated the fundamental right of Ms. Bhasin to freedom of the press under Article 19(1) (a) of the Constitution.
4. Arguments Presented
4.1 Petitioner’s Arguments
Ms. Bhasin’s attorney compared the internet with a printing press; he stated that journalists in times past relied heavily on the mechanical press to distribute information but in today’s world, the journalist depends completely on connected devices to perform their profession. As a result, the internet interruption was more than just an inconvenience, it was viewed as an outright violation of the constitution’s freedom of freedom of the press.[8] The Petitioners argued that the internet is a vehicle for exercising all of the rights outlined in Article 19 of the Constitution and that the internet should be regarded as an extension of these fundamental rights therefore because the petitioners are unable to access a legal remedy due to the lack of publication of the restriction order, the restrictions have been doubly found to be unconstitutional; improper as to their substance and improper as to their publication.
Counsel argued that the orders restricting protest were issued summarily and without a “measurable proportionality analysis”; they imposed restrictions on all activities in the entire territory instead of appropriately targeting particular identified threats to public order. With respect to the proportionality standard, the Petitioners contended that the means used by the State must be proportional to the legitimate objective, and no analysis of proportionality had been conducted. Counsel on behalf of Mr. Azad contended that Section 144 CrPC is intended for short-term, localised emergencies, and, therefore, its being used on a nationwide and indefinite basis was inconsistent with the intended application of that provision. The Intervenors further contended that the Government of India’s and the Governments of the Punjab and Haryana had access to less restrictive alternatives to an entire policy of disconnecting or terminating connectivity such as restricting access to particular sites or services, e.g., blocking access to Facebook and/or YouTube and that the Government’s failure to use such alternatives was unconstitutional.[9]
4.2 Respondent’s Arguments
The Respondents argued that they had lawfully imposed these restrictions to respond to serious threats to public order, national sovereignty, and the territorial integrity of India; that the abrogation of Article 370 was an event of constitutional magnitude that could have led to widespread disorder if no exceptional measures were taken; and that the magnitude of such an event warranted taking exceptional measures to address it. The Respondents also argued that the rules establishing the procedure for suspension of restrictions pursuant to section 144 of the CrPC provided sufficient safeguards for the affected parties: competent authorities were required to issue the orders; there was a requirement of periodic review of the orders by a designated review authority within certain time frames; and there was a requirement for renewal of the orders by a designated review authority.[10]
On the issue of judicial deference, the Respondents called on the Court to defer to the operational assessments developed by law enforcement and security forces, who would have had immediate access to ground-level intelligence that had not been provided to the Court. The Respondents submitted evidence that the orders were made under section 144 of the CrPC based on evidence of a reasonable apprehension of disturbance of public peace; that magistrates had given consideration to the security situation at the time the orders were made; and that the orders could be enforced at any time after being made, until such time as the conditions which gave rise to making the order no longer exist.
5. Court’s Reasoning and Analysis
The decision was written by Justice N V Ramana for a unanimous three judge bench of the Supreme Court. This opinion is characterized by analytical depth and an openness to rigorously testing executive action from a constitutional standpoint. Additionally, it provides a thorough discussion of issues of transparency and accountability in the exercise of emergency power through the application of strict scrutiny.
5.1 Issue I -Transparency of Restriction Orders
On this point, the Court determined that the Government did not have the ability to withhold restriction orders from judicial review. In support of this conclusion, the Court held that if the orders that are being challenged could not be judicially reviewed, then the constitutional guarantee of judicial review becomes virtually useless. This particular holding is premised on an overall principle of structural constitutionalism: an exercise of state authority should take place at the point when authority can be identified, and those who are affected by it must be afforded a reasonable opportunity to seek redress. The Government’s failure to produce the restriction orders to the Court was not treated by the Court as a technical error or procedural matter; rather, it was treated as a significant breach of its constitutional obligations.[11]
5.2 Issue II – Internet-Mediated Fundamental Rights and Proportionality
The court also made a sizeable doctrinal contribution to the second issue. It did not recognize internet access as a free-standing fundamental right, but recognized that the exercise of freedom of speech and expression, and freedom of trade using the internet, fall within the ambit of constitutional protection under Articles 19(1)(a) and 19(1)(g) respectively. Thus, the Constitution of India is in line with the UN Human Rights Council Resolution 32/13, 2016, which states that the same rights that people enjoy offline, should be respected and protected online.[12][13]
In examining whether the internet suspension was legal, the Court used the “proportionality” test and relied upon regular precedents as well as comparative constitutional jurisprudential approaches for guidance. The Court determined that four conditions must be present if restrictions on the fundamental rights will be imposed: there must be a legal basis for the restriction, it must pursue a legitimate purpose, it must be rationally competent to furthering that purpose and it cannot be more than is necessary to accomplish the same purpose. An indefinite regional shutdown failed all four of those tests by the Court’s determination.[14]
The Court also indicated that it was looking at how the European Court of Human Rights applies a similar comparative test for the validity of limits on communication imposed under Art. 10 of the European Convention on Human Rights and expressed a similarity/continuity of Indian constitutional standards with international human rights standards relating to digital communications.[15]
The Court ruled on the Suspension Rules by stating that the statutory framework includes procedural requirements. That is to say that when an order is made under the Suspension Rules, that order must have a defined period of time, must be publicly published so that it can be challenged, and must be subject to being reviewed regularly by an appropriate authority. Therefore, because there is no authority under the Suspension Rules for an indefinite suspension, an indefinite suspension is not a lawful authority under the Suspension Rules.
5.3 Issue III – Section 144 CrPC and Press Freedom
In regard to issue three, The Court held that although Section 144 of the Criminal Procedure Code allows the Police to take certain actions in anticipation of some harm occurring shortly after, it was never meant to be used as continual or indefinite means of governing or administering activity by the State Police. Prior to issuing an order under Section 144, the Magistrate needs to conduct an independent analysis in determining if there truly exists a credible, imminent, and defined threat to public safety. On the second issue discussed above, The Court found that successive orders issued under Section 144 are used as a de facto method of replacing a formal order by declaring an emergency and are viewed as abuse of the provisions outlined within the Statute.[16]
The Communication Blackout has caused Ms. Bhasin difficulty by inhibiting her being able to perform the professional responsibilities of a journalist; however, due to the Court not finding sufficient evidence that the restrictions imposed were specifically directed at inhibiting freedom of the press, rather than applying a general security measure which inadvertently inhibits freedom of the press, it denied Ms. Bhasin any specific relief based on this issue alone. However, the Court will consider any issues associated with freedom of the press through its general proportionality analysis. The doctrinal implications of this choice have been analyzed in Section VII of this decision.
6. Judgment and Ratio Decidendi
Though the Supreme Court did not invalidate any internet suspension orders issued by the government, it did provide a set of binding directives for the application of communications restriction authority, which will govern future applications. The following items will guide agencies and authorities with respect to the exercise of communications restriction authority:
All orders that have suspended communication must be published, so anyone whose communication has been suspended can seek judicial review.
The duration of any order suspending communications must have a specific, established duration, and must be periodically reviewed by an independent authority to determine if it continues to be necessary.
The government must consider alternative methods of restricting communications before ordering a complete suspension of all communication, such as limiting access to specific websites or platforms.
Orders issued under Section 144 of the CrPC must represent the appropriate application of the judicial mind and cannot be issued repetitively to continue past the permissible duration.
The competent authority in Jammu and Kashmir must review all Section 144 orders currently in effect with respect to the principles established in the instant judgment.The ratio decidendi of the judgment may be distilled into three core propositions. First, the exercise of fundamental rights through the internet whether freedom of speech under Article 19(1) (a) or freedom of trade under Article 19(1) (g) attracts full constitutional protection. Second, any executive order curtailing internet access must withstand the proportionality standard and remains subject to judicial review. Third, the Government is constitutionally precluded from imposing open-ended internet suspensions or from withholding from citizens the orders that authorise such suspensions.
7. Critical Analysis
7.1 Significance of the Decision
The importance of the Anuradha Bhasin ruling is in its finding of constitutional rules relevant not only to the specific situation in Kashmir but to every instance involving state use of control over communications networks in order to suppress political dissent or unrest. In affirming internet-based freedoms with respect to Article 19 of the Constitution, the Court has placed Indian law squarely in alignment with evolving global norms and has built upon the digital rights legal framework developed via earlier rulings.
Together, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 in which the Court held that the right to privacy is a fundamental right and Shreya Singhal v. Union of India, (2015) 5 SCC 1 in which the Court struck down Section 66A of the Information Technology Act for its chilling effect upon on-line speech constitute an important constitutive trilogy with respect to the protection of digital rights. Specifically, Singhal protects individuals from facing criminal liability for what they express online; Puttaswamy provides individuals with autonomy with regard to their personal data; and Anuradha Bhasin prevents the state from completely eliminating access to the internet.[17] Furthermore, the judgment established proportionality as a judicially enforceable standard for measuring governmental restrictions on fundamental rights in the context of communications infrastructure, aligning India with constitutional systems in Germany, South Africa, and the European human rights framework that similarly treat proportionality as a binding constitutional constraint.[18]
7.2 Limitations and Critical Assessment
The ruling lacks many important limitations aside from its doctrinal importance. A major limitation is there is no retrospective relief provided. The ruling was issued about 5 months after the people of Jammu and Kashmir had experienced a complete lack of communications services. Although the Court provided future guidance on the communication service restrictions, the Court did not provide any kind of immediate remedy, nor did it declare that the previous restrictions were unconstitutional. Therefore, the Court did not address that the people of Jammu and Kashmir have suffered a violation of their right to communications after 5 months of being denied a means of communication. The Court’s own proportionality framework clearly articulates that the 5-month communications blackout was disproportionate; however, the Court was not able to apply that framework to provide a remedy for the people of Jammu and Kashmir.
The issue relating to press freedom also receives attention. In subsuming Ms. Bhasin’s claim to freedom of the press under the proportionality framework generally, the trial court failed to conduct a more comprehensive review of the legal obligation under Article 19(1)(a) for state parties to discharge their responsibilities. The legal obligation requires state parties to operate within the constitutional framework so that blanket infrastructure restrictions do not have the same effect as an intentional attempt to prohibit press activity based on a group’s constitutional right to free speech. A prerequisite to any claimant’s ability to meet that threshold under the Court’s ruling to show evidence of being had been intentionally targeted places a burden on a claimant which he or she has no way to achieve or prove if the result of an intentional shutdown of infrastructure by the state has created the same result of a total prohibition on journalistic activity.
There is an important issue related to compliance. The Access Now and the Software Freedom Law Centre (India) have documented that the Court has created requirements for transparency and proportionality, which aren’t being followed during the majority of internet shutdowns in India. The pattern of non-compliance suggests a built-in limitation of judicial review as a remedy when the executive can quickly impose restrictions, litigate at a slow pace, and have no long-term institutional consequences for unconstitutional actions. This will lead to a situation where the constitutional framework reacts after the fact as opposed to proactively stopping violations before they occur.[19]
The Court’s conscious agnostic position on whether a freestanding fundamental right to internet access exists is defensible as a legal matter; however, this omission also creates a significant unresolved constitutional issue. Since digital networks now mediate the vast majority of access to jobs, health care, education, and government services, it will be necessary for future cases to directly address whether connectivity is a freestanding constitutional entitlement.
8. Conclusion
The Anuradha Bhasin v. Union of India case is an important decision by the Indian Supreme Court in relation to the digital age. The Court had not previously ruled directly on whether the government of India can cut off internet access to millions of its citizens. The Court held that it would in general be unconstitutional for a government to cut off internet access to millions of its citizens unless it is: [20]a) based on law; b) proportional; c) publicly notified; and d) subject to judicial review. The limitations of the case should not be underestimated. The Supreme Court’s decision did not restore internet access to those who had been cut off, did not award any compensation for the months of deprivation suffered, and did not stop India from being the country with the highest number of internet shutdowns in the world. These limitations, in part, are the result of the normal limitations of judicial review as a remedy for swiftly imposed executive action and, in part, are attributable to the Court’s choice of legal doctrine; that is, the Court preferred to provide forward-looking guidance as opposed to provide retrospective relief and chose not to apply the greatest standard of measurements in its proportional analysis.
The Judgment establishes a lasting constitutional framework: fundamental rights exercised through the medium of internet will have full constitutional protection; restrictions will only be valid if they are based on the law; there must be a legitimate need for restriction; restrictions must be be proportionate to the legitimate purpose; all such orders must be available for public scrutiny for a limited period of time; courts will have the authority to review all such acts. Using this framework, every subsequent internet shutdown in India must be viewed as an unconstitutional act. The lasting contribution of the judgment is not only the content of its doctrine but also its demand that in a democratic society, the State will have to provide an explanation to its citizens (and the courts) for the act of disconnecting them from their government and will have to do this in accordance with the Constitution.
9. Reference(S):
A. Primary Sources
Anuradha Bhasin v. Union of India, AIR 2020 SC 1308; (2020) 3 SCC 637 (India).
INDIA CONST. arts. 19(1) (a), 19(1)(g), 21, 32, 370.
Code of Criminal Procedure, No. 2 of 1974, § 144 (India).
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (India).
Jammu and Kashmir Reorganisation Act, No. 34 of 2019 (India).
B. Case Law
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 (India).
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
Yildirim v. Turkey, App. No. 3111/10 (Eur. Ct. H.R. Dec. 18, 2012).
C. International Instruments
U.N. Human Rights Council, The Promotion, Protection and Enjoyment of Human Rights on the Internet, U.N. Doc. A/HRC/RES/32/13 (July 1, 2016).
D. Secondary Sources
Access Now, Shutdown Tracker Optimisation Project (STOP), https://www.accessnow.org/campaign/keepiton/
Software Freedom Law Centre (India), Report on Internet Shutdowns in India 2019–2021 (2021).
Taniya Malik, Anuradha Bhasin v. Union of India, Indian Law Institute Annual Survey of Indian Law 341 (2020).
Global Freedom of Expression, Columbia University, Bhasin v. Union of India, https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
[1] Code of Criminal Procedure, No. 2 of 1974, § 144 (India) [hereinafter CrPC § 144]. Section 144 empowers a Magistrate to issue orders restricting assembly, movement, or action to prevent public nuisance or danger.
[2] INDIA CONST. art. 370 (repealed 2019); see also Constitutional Order No. 272 (Aug. 5, 2019), which applied the Constitution of India in full to the State of Jammu and Kashmir.
[3] Access Now, Shutdown Tracker Optimisation Project (STOP), https://www.accessnow.org/campaign/keepiton/ (last visited Apr. 2024). India recorded over 550 documented shutdowns between 2012 and 2022.
[4] Jammu and Kashmir Reorganisation Act, No. 34 of 2019 (India); Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (India) [hereinafter Suspension Rules].
[5] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 3–5 (India). Both petitions were filed under INDIA CONST. art. 32, which grants the Supreme Court original jurisdiction to enforce fundamental rights.
[6] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 26 (India). The Court framed this as a question of structural constitutionalism: the availability of judicial review presupposes access to the impugned orders.
[7] INDIA CONST. arts. 19(1)(a), 19(1)(g). Article 19(1)(a) guarantees freedom of speech and expression; Article 19(1)(g) guarantees the right to practise any profession or carry on any occupation, trade, or business.
[8] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 9 (India). Petitioners’ counsel relied on Romesh Thappar v. State of Madras, AIR 1950 SC 124, which held that freedom of the press is an essential component of freedom of speech under Article 19(1)(a).
[9] Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 (India). The Court in that case adopted a four-stage proportionality test derived from German and South African constitutional jurisprudence.
[10] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 59–62 (India). The Union relied on national security as an exception to disclosure under Article 19(2), which permits reasonable restrictions on free speech in the interests of the sovereignty and integrity of India.
[11] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 74–76 (India). The Court grounded this holding in the principle that judicial review is a basic feature of the Constitution. See Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (India).
[12] U.N. Human Rights Council, The Promotion, Protection and Enjoyment of Human Rights on the Internet, U.N. Doc. A/HRC/RES/32/13 (July 1, 2016). This resolution, adopted by consensus, affirms that human rights protections apply fully in the digital environment.
[13] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 24 (India). The Court expressly stated: “Freedom of speech and expression and freedom to practise any profession or carry on any trade using the medium of internet enjoys constitutional protection under Article 19(1)(a) and 19(1)(g).”
[14] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 87 (India); see also Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, 57 (India). This four-part test is consistent with the proportionality framework applied by the European Court of Human Rights under Article 10 ECHR.
[15] Yildirim v. Turkey, App. No. 3111/10 (Eur. Ct. H.R. Dec. 18, 2012). The ECtHR held that a blanket block on an entire platform violated Article 10 ECHR because it was broader than necessary and lacked adequate procedural safeguards.
[16] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, 96–100 (India). The Court relied on Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746 (India), which held that Section 144 is a preventive, not a punitive, measure and must be applied with careful judicial application of mind.
[17] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India); Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India). In Singhal, the Supreme Court unanimously struck down Section 66A of the Information Technology Act, 2000 as an unconstitutional restriction on online speech.
[18] See generally Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (2012); S v. Makwanyane, 1995 (3) SA 391 (CC) (S. Afr.) (establishing proportionality review in South African constitutional law).
[19] Software Freedom Law Centre (India), Report on Internet Shutdowns in India 2019–2021 (2021); Access Now, Shutdown Tracker Optimisation Project (STOP), https://www.accessnow.org/campaign/keepiton/ (last visited Apr. 2024).
[20] Taniya Malik, Anuradha Bhasin v. Union of India, Indian L. Inst. Ann. Surv. Indian L. 341 (2020); Bhasin v. Union of India, Global Freedom of Expression, Columbia University, https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/ (last visited Apr. 2024).
