SEMESTER 1

HISTORY

A PAPER ON:

Anuradha Bhasin

VS

Union of India on 10 January 2020

SUBMITTED TO:

Prof. Nazima Munshi

NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Name: Nandini Soora

BA LLB Division A

Roll Number: A006

Kirit P. Mehta School of Law 1

CASE: Anuradha Bhasin VS Union of India, 2020

CITATION:

• (1995) 2 SSC 161

• (1985) 1 SSC 641
• (2015) 5 SSC 1
• (1998) 3 SSC 410
• (2019) SSC online SC 1726
• (2019) SSC online SC 1725

CASE NUMBER: W.P. (C) No. 1031 of 2019

DATE OF JUDGEMENT: January 10, 2020

PARTIES INVOLVED:

• PETIONERS: Anuradha Bhasin, Ghulam Nabi Azad

• RESPONDENT: Union of India

ADVOCATES WHO APPEARED IN THE CASE:

K.K Venugopal, Attorney General Tushar Mehta, Solicitor General K.M. Nataraj, Vikramjit
Banerjee, Additional Solicitors General, Kapil Sibal, Huzefa Ahmadi, Dushyant A Dave, Ms.
Meenakshi Arora and Sanjay Hegde

JUDGES: Justice N.V. Ramana, Justice R. Subhash Reddy and Justice B.R Gavai

Kirit P. Mehta School of Law 2

 FACTS OF THE CASE

Jammu and Kashmir is an Indian territory bordering Pakistan which has been the subject of a
decades-long dispute between both the countries. Article 370 of the Indian Constitution gave
J&K a special status where it had its own Constitution and Indian citizens from other states were
not allowed to purchase land or property there.1

The issue began with the security advisory issued by the Civil Secretariat, Home Department,
Government of Jammu and Kashmir stating to cut short their stay and make their safe
arrangements to go back.2 Later, educational institutions and offices were shut down until further
orders. On August 4, 2019 internet services, mobile connectivity and landline were also shut
down until further orders.3 On August 5, 2019, the Constitutional Order No. 272 was passed by
the President of India applying all provisions of the Constitution of India to Jammu and Kashmir
and stripped it from special status enjoyed since 1954.4 The District Magistrate passed the order
restricting the movement and public gathering, apprehending breach of peace and tranquility
under Section 144 of CrPc on the same day, due to prevailing circumstances. Due to which,
journalist movements were restricted and this was challenged under Article 19 of the
Constitution which guarantees freedom of speech and expression and freedom to carry any trade
or occupation.5 In this context, in the Supreme Court, legality of internet shutdown and
movement restrictions are challenged under Article 32 of the Constitution.

1
Bhasin v. Union of India (Global freedom of expression Columbia university)
<https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/>
2
Ayush Verma case analysis Anuradha Bhasin vs Union of India
<https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/>
3
Ibid.
4
Ananya Dutta Bhasin vs UOI <https://lawlex.org/lex-bulletin/case-summary-anuradha-bhasin-
vs-uoi/20477>
5
Ibid.

Kirit P. Mehta School of Law 3

 ISSUE OF THE CASE

Issue 1:
Whether the freedom of speech and expression and freedom to practice 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?6

Issue 2:
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated
due to the restrictions?7

Issue 3:
Whether the imposition of restrictions under Section 144, CrPC were valid? Whether the
Government can claim exemption from producing all the orders passed under Section 144,
CrPC?8

Issue 4:
Whether the Government's action of prohibiting internet access is valid?9

6
Bhavya Arora Anuradha Bhasin v/s Union of India (Legal Service India) <
http://www.legalserviceindia.com/legal/article-3164-anuradha-bhasin-v-s-union-of-india.html>
7
Ibid.
8
Ibid.
9
Ibid.

Kirit P. Mehta School of Law 4

 BACKGROUND

The issue begins right from 05.08.2019, when Constitutional Order 272 was issued by the
President, applying all provisions of the Constitution of India to the State of Jammu and
Kashmir, and modifying Article 367, the Interpretation of it in its application to the State of
Jammu and Kashmir.
Subsequently, the trip of the outsiders was cut short and arrangements were made for them to go
back, educational institutions and offices were also shut down until further orders. District
Magistrates, comprehends breach of peace and tranquility, and hereafter imposed restrictions on
movement and public gatherings by applying Section 144 of Cr.P.C. On 04.08.2019, internet
services, mobile connectivity and landline were shut down until further orders.
The petition W.P. (C) No. 1031 of 2019, was filed by Ms. Anuradha Bhasin. She was the
executive editor of the Kashmir Times Srinagar Edition who argued internet to be essential for
the modern press. The petitioner pointed out that print media could come to an end without
internet since the newspaper had not been published from 06.08.2019.
The petitioner's argument was about the failure of the government to give a valid reason for
passing such order as required in Suspension rules. She additionally pointed out the reason for
such orders to be passed was wholly based on mere apprehension of risk interns of law and order
which was not the case. The contention of the petitioner was to point that the government needs
to find a way to balance the measures necessary to maintain national security on one hand and
the rights of the citizens. However, the state is establishing it as the ground for passing the order
to restrict the rights of the citizens. He claimed that restrictions were to be imposed temporarily,
however, are imposed for more than a hundred days.

It is necessary to publish order is a component of natural justice and it even is made accessible to
the general public. The state cannot claim any kind of privilege before the court for not
producing such judgements. Furthermore, the proportionality test was upheld by the court and
must be seen that restrictions imposed on the fundamental rights of citizens are reasonable or not.
The subsequent petition W.P. (C) No. 1164 of 2019 was filed by Member of Parliament, Mr.
Ghulam Nabi Azad, whose argument was that the state cannot claim any kind of privilege before

Kirit P. Mehta School of Law 5

the court for not producing such orders. Additionally, he stated that the national emergency can
only be declared in a handful of cases, whereas in this case, neither internal not external
disruption exists. There was no apprehension in the law and order of the state and hence no need
of passing Section 144 of CrPC. His contention was not to restrict everybody however to impose
specifically against the people of the certain category who neglect the peace
The state should impose the least restrictive measures and must balance the fundamental rights of
citizens with the safety of people. And imposing restrictions on the internet, it impacts not only
freedom of speech and expression but also the freedom to carry any trade, profession or
occupation. However, this petition was withdrawn during arguments, the petitioner suggested
that the restrictions imposed injure the rights of the law-abiding citizens.
On the other hand, the respondent side Mr. K.K. Venugopal the Attorney General submitted that
the condition of Jammu and Kashmir having militancy has to be taken into account. He produced
the in the court the contention for passing such order was after taking the cognizance of the
circumstance in the state. The mere reason was to take preventive measures knowing about the
history of internal and external militancy, otherwise it could lead to huge barbarity. He compared
the circumstances to that of 2016 when terrorist was killed and similar actions were taken by the
officials.
Mr. Tushar Mehta, the Solicitor General expressed that the intention was to protect the citizens
which are the first and foremost duty of the state. He considered such orders to be necessary to
have peace in the state. He claimed that such orders are systematically being relaxed depending
upon the present circumstances of the region.
The Magistrates contended that there is almost full relaxation which was earlier imposed based
on threat perception. All televisions, radio channels and newspapers are functioning including
the one where the petitioner is working. The orders passed under Section 144 of CrPC can be
preventive for the safety of the citizens. He justified that it is impractical to segregate the ones
who are agitators from the peacemakers. He argued that the internet was never restricted in
Jammu and Ladakh. Even through social media messages can be sent and received to people to
incite ruckus.
The intention of restricting internet in some regions was not only social media but also dark web,
which allows sale and purchase of illegal weapons. He concluded that all the orders passed have
followed the procedure in Suspension Rules and are being reviewed strictly.

Kirit P. Mehta School of Law 6

LEGAL PROVISIONS10
1) Constitution of India: Article 19(1)(a) and Article 19(1)(g)
2) Code of Criminal Procedure, 1973: Section 144
3) Information Technology Act, 2000
4) Information Technology (Procedures and Safeguards for Blocking for Access of Information
by Public) Rules, 2009
5) The Telegraph Act, 1885
6) The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules,
2017.

THE COURT HELD THAT:

Issue 1: The right to freedom of speech and expression under Article 19(1)(a), and the right to
carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally
protected”. This proclamation would entail that any curtailment of internet access has to be
reasonable and within the boundaries laid down by Art. 19(2) and 19(6) of the Constitution. The
court would not only observe that while ensuring peace and tranquility, but there also is not an
excessive burden on freedom of speech and expression.

Issue 2: Freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was not violated due to
the restrictions imposed.

The Court rejected this plea. It is unquestioned that freedom of the press is one of the
quintessential features of a democracy, which is very well protected by the Constitution. The
petitioner failed to produce any evidence that the orders passed by the state-imposed restrictions
on the freedom of press including publication of newspaper and their distribution.

Therefore the court couldn't discover whether such a claim was legitimate or not. Since then, the
petitioner has resumed publication. Hence the court held it to be not violative and believed the

10
Indiankanoon.org < https://indiankanoon.org/doc/82461587/>

Kirit P. Mehta School of Law 7

government to be taking care of the freedom of the press.

Issue 3: The imposition of restrictions under Section 144, CrPC were not valid. The Government
cannot claim exemption from producing all the orders passed under Section 144, CrPC.

The Court held that the power cannot vanquish legitimate expression of opinion or grievance or
exercise of any democratic rights. This section can only be imposed in case of an emergency and
not for the prevention of instruction or injury to any lawfully employed. Therefore, mere
disturbance in the law and order of the state may not necessarily lead to a breach of public order.
Only the magistrate and the state have the right to decide whether there is a likelihood of threat
to public peace. No person should be deprived of his liberty unless it is dangerous and therefore
repetition of the imposition of such orders would be a clear abuse of power.

The court held that the state had to publish the order placing restrictions before the court. It had
cited difficulty in determining the legality of the restriction imposed when the state refused to
produce the order before the court. The state must provide all relevant information necessary
which is needed. As per the interpretation of Article 19, freedom of speech and expression
includes right to information. The state has no right to pass such law based on mere apprehension
of danger. Hence, this cannot be a valid ground or reason to refuse to produce the order.

Issue 4: Government's action of prohibiting internet access is not valid.

The Court highlighted that it had to consider both procedural and substantive elements to
determine the Constitutional legality of the internet shutdown.

The procedural mechanism has two components. First, there is a contractual component between
Internet Service Providers and the Government. Second, there is the statutory component as
mentioned under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973
and the Telegraph Act.

The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the
restriction of internet contingent on certain safeguards. Addition to this Section 5(2) of the

Kirit P. Mehta School of Law 8

Telegraph Act permitted suspension orders only in case of a public emergency or for the safety
of the public. Although to pass such an order determination of the existence of emergency is
required.

The suspension rules did not explicitly mention the maximum duration of a suspension order.
Hence, it is up to the Review Committee to determine the duration and to make sure it does not
exceed beyond such period which is necessary.

Kirit P. Mehta School of Law 9

 JUDGEMENT

In this view, we issue the following directions:

a. The Respondent State/competent authorities are directed to publish all orders in force and any
future orders under Section 144, Cr.P.C and for suspension of telecom services, including
internet, to enable the affected persons to challenge it before the High Court or appropriate
forum.

b. We declare that the freedom of speech and expression and the freedom to practice any
profession or carry on any trade, business or occupation over the medium of internet enjoys
constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such
fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the
Constitution, inclusive of the test of proportionality.

c. An order suspending internet services indefinitely is impermissible under the Temporary

Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension
can be utilized for temporary duration only.

d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle
of proportionality and must not extend beyond necessary duration.

e. Any order suspending internet under the Suspension Rules is subject to judicial review based
on the parameters set out herein.

f. The existing Suspension Rules neither provide for a periodic review nor a time limitation for
an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review
Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review
within seven working days of the previous review, in terms of the requirements under Rule 2(6).

g. We direct the respondent State/competent authorities to review all orders suspending internet
services forthwith.

h. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if
there is a necessity to pass fresh orders, the law laid down herein must be followed.

Kirit P. Mehta School of Law 10

i. In any case, the State/concerned authorities are directed to consider forthwith allowing
government websites, localized/limited e-banking facilities, hospitals services and other essential
services, in those regions, wherein the internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not
only where there exists present danger, but also when there is an apprehension of danger.
However, the danger contemplated should be in the nature of an “emergency” and for the
purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

k. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of
opinion or grievance or exercise of any democratic rights.

l. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial
review of the same. The power should be exercised in a bona fide and reasonable manner, and
the same should be passed by relying on the material facts, indicative of application of mind.
This will enable judicial scrutiny of the aforesaid order while exercising the power under Section
144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the
principles of proportionality and thereafter, apply the least intrusive measure.

m. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.

n. The Respondent State/competent authorities are directed to review forthwith the need for
continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid
down above.

The Writ Petitions are disposed of in the aforestated terms. All pending applications are also
accordingly disposed of.

Kirit P. Mehta School of Law 11

 PERSONAL OPINION

In Anuradha vs UOI, the court passed a number of judgements which left a ray of hope of
betterment in this area. The judgment fairly laid down by directing suspension on internet
shutdowns while directly emphasizing principles of proportionality, necessity and
reasonableness. To sum up, the court held that the government cannot claim an exception from
producing any order before the court passed under Section 144 of CrPC and whether the
government can claim exemption or not is a matter of fact which is to be decided by the court in
every case according to the facts and circumstances. Further, the court said that today the internet
is an Indispensable part of everyday life and therefore freedom of speech and expression and
freedom to practice 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.

The judgement contributed in expounding the doctrine of proportionality. While exercising the
power under Section 144, the Magistrate is bound to balance the rights and limitations which is
based on the principle of proportionality and should apply the least intrusive measure. The court
also emphasized that a free of the press was a sacred right within the right to free speech and
expression

This case can be considered as a glimpse of hope in darkness since the Court held in this case
Freedom of Speech and Expression over the internet is a fundamental right therefore in future the
court, in subsequent cases might hold that Right to use the internet is a fundamental right, since
the world is a global village and not being able to use internet is clearly depriving individuals of
various new opportunities, information and many such things. Internet shutdown emerges as a
hindrance in the growth of the State as it halts the quick functioning of various necessities

Therefore, it can be said that with the passage of time, the doctrines held in this case will age
well and can be used more judiciously to render justice.

Kirit P. Mehta School of Law 12

 BIBLIOGRAPHY

1. Bhasin v. Union of India (Global freedom of expression Columbia university)

https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
accessed on 26th November 2020
2. Ayush Verma case analysis Anuradha Bhasin vs Union of India
https://blog.ipleaders.in/anuradha-bhasin-v-union-of-india-case-analysis/ accessed
8th December 2020

3. Ananya Dutta Bhasin vs UOI https://lawlex.org/lex-bulletin/case-summary-

anuradha-bhasin-vs-uoi/20477 accessed 8th December 2020
4. Bhavya Arora Anuradha Bhasin v/s Union of India (Legal Service India) <
http://www.legalserviceindia.com/legal/article-3164-anuradha-bhasin-v-s-union-
of-india.html> assessed 9th December 2020
5. Indiankanoon.org < https://indiankanoon.org/doc/82461587/>
6. 2020 SSC Online 25

Kirit P. Mehta School of Law 13

THANK
YOU

Kirit P. Mehta School of Law 14