The landmark case of Anuradha Bhasin v. Union of India underscores the fundamental right of the right to freedom of speech and expression in a democratic society. In August 2019, the government imposed restrictions on communication networks, including internet and mobile services, in Jammu and Kashmir. This case represents a pivotal moment in Indian constitutional law, as the Supreme Court reaffirmed the essential role of constitutional rights and clarified the limits of governmental authority in restricting fundamental freedoms.

Facts

The issue arose after the Civil Secretariat, Home Department of Jammu and Kashmir issued a security advisory instructing people to cut short their stay and arrange for a safe return. Educational institutions and offices were closed indefinitely. On August 4, 2019, internet, mobile, and landline services were suspended.

The following day, August 5, 2019, the President of India issued Constitutional Order No. 272, applying all provisions of the Indian Constitution to Jammu and Kashmir, thereby removing its special status under Article 370, which it had held since 1954. In response to concerns about public unrest, the District Magistrate invoked Section 144 of the Criminal Procedure Code (CrPC) to restrict movement and public gatherings.

Journalists faced movement restrictions, leading to challenges under Article 19 of the Indian Constitution, which protects freedom of speech, expression, and the right to carry on a profession. The legality of the internet shutdown and movement restrictions was brought before the Supreme Court under Article 32, which addresses constitutional remedies for rights violations.

Issues

1. Can the government avoid disclosing all orders issued under Section 144 of the Criminal Procedure Code (CrPC) and the Suspension Rules, citing exemptions?
2. Does the right to free speech and expression, as well as the right to practice any profession or engage in trade or business online, fall under the fundamental rights guaranteed by Part III of the Constitution?
3. Is the government's decision to block access to the internet legally justified?
4. Were the restrictions imposed by the government under Section 144 of the CrPC valid and lawful?
5. Were the petitioner's press freedoms unlawfully restricted due to the government-imposed limitations?

Petitioner’s argument

The petitioners argue that restrictions under Section 144 fail the constitutional test of "reasonableness and proportionality," as no evidence supports the claimed threat to law and order. They also contend that the internet suspension was procedurally flawed and overly broad, violating fundamental rights without adopting less restrictive measures.

Respondent argument

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.

Judgement of the 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.

Concluding remark

In conclusion, the case of Anuradha Bhasin v. Union of India underscores the pivotal role of the Internet in enabling modern communication, publishing, and other online engagements. The judgment effectively established that accessing the Internet for exercising the rights of Freedom of Speech and Expression, as well as the right to carry out trade, business, or any profession, is protected as a Fundamental Right under Article 19 of the Indian Constitution. This decision sets a significant precedent in affirming the constitutional guarantee of these rights in the digital age.