ANURADHA BHASIN V. UNION OF INDIA W.P (C) NO. 1031 OF 2019 (Decided on 10th January, 2020)
Facts & Background
The Petitioners in this case, Anuradha Bhasin and Ghulam Nabi Azad filed this petition against the indefinite restrictions imposed on Movement and Internet/telecom services. On 2nd August, 2019 the Civil Secretariat, Home Department, Government of Jammu and Kashmir, issued a security advisory wherein the tourists scheduled to visit the temples of Amarnath were asked to return, the schools and colleges were also ordered to remain shut.
On the 4th of August 2019 there were restriction on movement imposed in certain regions and mobile phone networks, internet services, landline connectivity were all made obsolete. On 5th August 2019, Constitutional Order No. 272 was released which made all the provisions of the Constitution of India applicable to the state of Jammu and Kashmir as well thereby abrogating Art. 370. The special status that Jammu and Kashmir had been enjoying since 1954 had now been revoked. In the following days the government began imposing restrictions on movement in the valley.
S.144 of the CrPC was imposed which led to restriction of movement in the valley. This was imposed as a preventive measure to avoid and prevent any kind of disturbance due to the abrogation of Art. 370 in the state of Jammu and Kashmir. The Petitioner contended that the restrictions caused failure to distribute and publish the Kashmir Times, Srinagar Edition from 5th August, 2019 until the date of filing of the petition.
The Petitioners filed the instant Writ Petition under Art. 32 of the Indian Constitution seeking orders to set aside the imposition of restrictions on the modes of communication i.e. mobile phones, telephones and internet in Jammu and Kashmir.
The Petitioner also claimed that Art. 19, particularly the Right to Speech and Expression and Right to freely practice Trade or Business was being violated due to the restrictions. The writ also sought to restore communication lines in Jammu and Kashmir so that media and press can function without any hassles. The petitioner also pleaded the apex court to frame and issue guidelines that provide for the media to work and publish news that is not subjected to any kind of restriction.
Issue 1: Whether the non-production of orders by the Government passed under S. 144 CrPC is justified and valid
The orders passed by the Magistrates imposed restrictions with respect to the movement and communications in the state of Jammu and Kashmir. The Petitioners prayed for the issuance of the Writ of Mandamus for the production of the orders that granted the passing and stay of §144 in the State. In light of all the submissions the court held that all the orders pertaining to the instant case and all the future orders regarding suspension of internet or telecom services under §144 of CrPC are to be published and made available to the general public.
Issue 2: Whether the freedoms guaranteed under Art19(1)(a) and Art 19(1)(g) are inclusive of exercise of the same over internet.
The court categorically established every part of the contention, but refrained from naming right to internet as a fundamental right. While Internet acts as a provider of various other rights, it in itself is not a right.
With changing times and the upgrades in the technology, it is crucial that the legal fraternity keeps pace and ensures incorporation of all the updates in the legal system as well. Internet in the present times has become an indispensable need, which not only serves recreational purpose but also acts as a source of livelihood for many. Internet being the medium facilitating, free trade, profession, speech and expression, it is high time that the same be recognised as a part of Art. 19 of the Indian Constitution.
Hence, any restriction so imposed should have the judicial backing and be open to judicial review, alongside an in-depth understanding of the facts and circumstances surrounding the imposition of the same. The necessity and degree of restriction, urgency, period of prevalence, territorial extent, etc are some of the many factors that decide the need and scope of any curtailment.
Issue 3: Whether the indefinite ban on Internet and communication is valid
It is a universally acknowledged fact that the State of Jammu and Kashmir has been the focal point for various internal disturbances and external insurgencies, and the court opined that in light of the prevailing circumstances it is a probable outcome that free and accessible internet leads to propagation of terrorism. After discussing the test of proportionality, and the reasonability of restrictions, the court opined that it is necessary that such a ban exists. But the indefinite nature of the internet ban is what is not sanctioned by law.
The court held that internet based essential services and other services in non-danger areas are to be restored immediately. In areas where the ban is necessary, proper precautions to be taken to ensure alternative remedies.
Issue 4: Whether the imposition of restrictions under §144, CrPC is valid
The counsel for the petitioners, Kapil Sibal, contented that the state needs to prove that there existed such a situation which made the imposition of §144 of CrPC mandatory. The state was demanded the justify of imposition of restrictions in Jammu and Kashmir. The imposition of the restrictions should amount to the reasonable prevention of acts that would lead to disturbance, nuisance and obstruction to public order and public peace in the valley.
The court ordered that the orders that imposed the restrictions may be revoked or altered according to the development in the situation persisting in the area and post review, all the orders ultra-vires or encroaching the rights of citizens are to be revoked.
Issue 5: Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions
The Petitioners contended that due to the imposition of the stringent regulation on movement and communication in Jammu and Kashmir they were unable to carry out their professions i.e. the Right to free movement and Freedom of press and journalists was curtailed. This plea of the petitioner was rejected by the court.
To strengthen this, the court made stern comments on how the government should act more responsibility and let the press and media exercise their right all the time. The journalists shouldn’t be hindered of their right to exercise their freedom of press and media.
Rules of Law
- Article 19 of the Indian Constitution – Protection of certain rights regarding freedom of speech etc
- All citizens shall have the right
- to freedom of speech and expression;
- to practise any profession, or to carry on any occupation, trade or business
- Section 5 in Indian Telegraph Act, 1885 – Power for Government to take possession of licensed telegraphs and to order interception of messages. —
- On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government, may, take temporary possession of any telegraph established, maintained or worked by any person licensed under this Act.
- On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.
- Section 144 in the Code of Criminal Procedure, 1973:
Power to issue order in urgent cases of nuisance of apprehended danger.
- An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
- An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
Case Analysis and Comments
The case of Anuradha Bhasin highlights a really important aspect, highlighting the supremacy of the Fundamental Rights that each citizen of India is entitled and guaranteed as a birth right. Ironically, the case was filed against the protectors of fundamental rights who instead indulged in infringing the rights of the citizens.
While the abrogation of Art. 370 was already being discussed, it had been as a precautionary measure that S.144 of CrPC was implemented within the State of Jammu and Kashmir to avoid any disruption of public peace and law and order situation within the state. In furtherance to the present, the communication and telecom services were suspended within the state to make sure that no hate and false information is spread.
It has been observed time and time again that the evolution of system is important with changing times, and this judgement may be a positive step towards the right direction which recognizes the importance of internet and its peripherals within the ever evolving human life.
While the court discussed and elaborated majorly on the freedoms ensured to people, thereby holding that internet as a medium is vital for the enforcement of Art 19(1)(a) and (19)(1)(g), but the court did not provide any insight on how internet in itself, individually qualifies to be an indisputable right.
Despite the Respondent-State grossly violated the laws of the State by keeping the written orders discrete. The court ordered the disclosure of those documents, but didn’t call out the govt for indulging in such unfair practice. Privilege claimed by the govt. . can’t be a reason for non-disclosure of details which directly affect and intrude on the rights of the citizens.
Interestingly, since this judgement is very articulate and elaborate, and addresses all the problems on record with utmost coherence, this case might set precedent in cases concerning the freedom of individuals , but it fails people when it involves upholding the intricacies of peace keeping, abuse of power and administration of rule of law.
 Art. 19(1)(a), Constitution of India, 1950