Authored By: Taniya Yadav
The NorthCap University
INTRODUCTION
Anuradha Bhasin v. Union of India is a landmark moment in Indian constitution where; the supreme court dealt with the balance between national security and digital freedom. Led by the extended internet shutdown i.e., communication lockdown in Jammu & Kashmir followed by the abrogation of article 370. The case questioned the constitutional limits of such restrictions in democracy and examined the legality of uncertain internet shutdowns and restrictions on movement. Breaking new grounds, the supreme court held that freedom of speech and communications via internet are protected under Article 19 (1) (a), setting crucial procedural safeguards against arbitrary state action.
BACKGROUND
Back in 2019, The Government of India took the radical step of abrogating Article 370 of the constitution, which had granted exclusive self-governance rights to the former state of Jammu & Kashmir. In the preparation of possible unrest, the government imposed a series of restrictions including:
- Suspension of internet and telecommunication service across the region.
- Restriction on movement, assembly and public gatherings under Section 144 CrPC.
- House arrest and detentions of political leaders, civilians and activists.
These preventive security measures were sweeping and indefinite. Further affecting civil liberties but also the access to education, healthcare, business and media.
Executive editor of Kashmir Times; Anuradha Bhasin, filed a writ petition under Article 32 of the Indian Constitution in The Supreme Court. She argued that the internet shutdown and movement restrictions discouraged the exercise of press freedom, preventing journalists from carrying out their professional duties.
In parallel, another petitioner; Ghulam Nabi Azad (senior politician) also filed a plea challenging the same restrictions imposed, especially on the hardships faced by the netizens in accessing essential services and dissenting opinion.
Both petitions collectively raised concerns about the following:
- Violation of fundamental rights of the netizens under Article 19(1)(a), Article 19(1)(g) and Article 21 i.e., freedom of speech, freedom to practice any occupation and right to life and personal liberty).
- Lack of transparency & accountability (no formal orders to justify the restrictions that were imposed).
Later, this case became a national debate on digital rights, preventive state action and constitutional freedom in the conflicted areas i.e., Jammu & Kashmir. This incident forced judiciary to address; whether access to the internet is a legal necessity? Or whether it is protected under the constitution?
Supreme court pronounced its judgement in January 2020, concluding it as a landmark case in Indian constitutional law and laying the foundation for future regulation of “digital freedom” and “emergency state powers”.
FACTS
Following the abrogation of Article 370 in August 2019, Government of India imposed several restrictions in the conflicted area, including the uncertain internet shutdown, communication blockade and section 144 CrPC.
These restrictions further disrupted media, education, healthcare and business activities accessibility for the netizens.
Anuradha Bhasin (journalist at the Kashmir Times) filed a petition that challenged theses constraints before The Supreme court claiming violations of fundamental rights under Article 19 & 21.
Thereafter, the Government of India defended these imposed restrictions as a necessary action to maintain public order in the conflicted zone and national security.
ISSUES
- Whether the indefinite restrictions i.e., internet shutdown and communication blockade are constitutionally valid?
- Whether the imposition of section 144 of CrPC was lawful and met the necessary conditions?
- Whether freedom of speech and freedom of any occupation/profession via internet is protected under Article (19)(a) and Article (19)(g) of the constitution.
- Whether not publishing the shutdown orders publicly by the Government of India violates transparency and accountability required by the rule of law.
ARGUMENTS
Petitioner’s argument:
Uncertain internet shutdown and imposition of section 144 of CrPC which further violated the fundaments rights of the netizens under Article 19(1)(a) and 19(1)(g). These restrictions lacked justification and publication of these curbs.
The freedom of press was affected as not letting them participate actively in the democracy.
Moreover, the absence of written orders hindered judicial review and public accountability.
Respondent’s argument:
Restrictions imposed by the Government of India were for national security and to maintain public order after the abrogation of Article 370.
Internet could be the main source to mobilize unrest or violence. So, shutdowns were imposed as a preventive measure.
There is no absolute right as such “right to internet” therefore, reasonable restrictions are permitted under Article 19 (2).
JUDGEMENT
- The internet access for speech and trade is protected under Articles 19(1)(a) & Article 19(1)(g).
- Any restrictions imposed must meet the legality and necessity therefore, indefinite suspension of internet services is unconstitutional.
- It’s government responsibility to publish all shutdown and restriction orders to ensure transparency hence, allowing for judicial review.
- Section 144 CrPC cannot be used to suppress justified resistance or indefinity curb the fundamental rights of the netizens.
BASIC STRUCTURE
Overtime these following elements have been recognized as forming part of the constitution’s basic structure (exhaustive list is not provided by the Supreme Court).
- Proportionality in restrictions of rights
- Rule of law
- Separation of powers
- Necessary judicial review
- Transparency and accountability in governance
- Freedom of speech and expression
The court upheld these core constitutional values by mandating the publication of restriction orders and affirming that the internet access here is linked to “freedom of speech and trade” Further this case preserved the essential components of constitutional democracy by strengthening the procedural safeguards that will eventually prevent arbitrary executive action.
SIGNIFICANCE
This was the first case in India to legally link internet access to fundamental rights further strengthening freedom of expression, freedom of press & trade in digital spaces.
Limited the executive power during the preventive actions like ‘internet shutdowns’ and ‘section 144 CrPC’.
CRITICISM
There was no immediate restoration of internet services by the court despite recognizing the violation; enforcement mechanism was weak.
Court avoided ruling on the constitutionality of the abrogation of Article 370 therefore the decision was cautious deferential to the executive in the name of national security.
CONCLUSION
Anuradha Bhasin v. Union of India is a landmark judgement that opened the door for the protection of digital rights in India. The Supreme Court laid down important procedural safeguards to prevent the executive overreach while maintaining a balance between national security concerns and fundamental rights.
Further incorporating freedom od speech and trade via internet a fundamental right recongnized under Article 19 (1)(a) and 19 (1)(g) and emphasized the importance of necessity and legality in any restriction of rights; state must act within the bounds of the constitution even in extraordinary situations (here, possibility of unrest).
