This Case Summary is written by Medha Rudra, a student at KIIT School of Law, Odisha
The case of Anuradha Bhasin v. Union of India is a ray of hope as it stated that the Freedom of Speech and Expression over the Internet is a fundamental right. It recognized that freedom of press should not be curtailed until it harms the public order of a country. It also stated that internet shutdown for an indefinite period is not a solution for preventing apprehension of harm to law and order. This case comment explains in details the facts of the case and its background which led to the declaration of such a restriction by the government. The author will also discuss the contentions and arguments put forward by both the parties and the issues raised. The author will provide a detailed analysis of the judgement given by the Court and will also present the views and opinions the author feels and will also highlight the gap at which the case may be challenged and the decision could be improved in future. This case will in future give way to the demands raised for Internet as a fundamental right and will nudge the governments to think twice before putting complete restrictions on people’s freedom of speech and expression.
Keywords – Freedom of Speech and Expression, Internet, Supreme Court, Restrictions, Freedom of Press
This recent judgement was decided by a three judge bench of the Hon’ble Supreme Court of India in which question arose as to the essentiality of internet for the smooth functioning of media. This case arose in the midst of the abrogation of Article 370 which resulted in the revocation of the special status of Jammu and Kashmir. The case argued on the internet shutdown and movement restrictions imposed over the territory of Jammu and Kashmir on 4th August, 2019. The restrictions were imposed under the name of maintaining the public order. The Court ordered the Government to assess the impositions by conducting the test of necessity and proportionality and should act accordingly to that. The decision of the Court was questioned on the basis of curtailing the freedom of speech of the press and media and also on the basis of Court’s ignorance on the indefinite restriction of internet services and movement of press personnel.
The issues of the case arise with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir on 2nd August, 2019 advised the tourists and the Amarnath Yatris to shorten their stays and to make arrangements for return so as to maintain their safety and security. Further, an order was released stating that all educational institutions and offices were to remain closed until any further orders are received. On 4th August, 2019, the internet services, mobile networks and landline connectivity was discontinued. The President, on 5th August, 2019, issued Constitutional Order 272 which led to revocation of Article 370 and resulted in the applicability of all Constitutional Provisions of India to the state of Jammu and Kashmir. The District Magistrate further imposed restrictions on movement and public assembly under the authority of Section 144 of Code of Criminal Procedure, 1973. So this case was brought under Writ Petitions by Ms. Anuradha Bhasin who was the editor of the Kashmir Times Srinagar Edition and Mr. Ghulam Nabi Azad who is the former Leader of Opposition in Rajya Sabha.
CONTENTIONS AND ARGUMENTS OF THE PARTIES
The Petitioner contented that print media came to a stop as internet services were not available and curtailing the internet is a breach of freedom of speech and expression and should be tested on the basis of necessity and proportionately. It was observed by the petitioners that the Suspension Rules under the Telegraph Act was of a temporary nature and this internet shutdown has become of an indefinite nature. It was also submitted that restrictions imposed are also in contravention of Indian National Telecom Policy, 2012. It was contented that restrictions imposed should have been temporary in nature but have been imposed for more than 100 days. It was argued that the Government imposed these restrictions on the basis of apprehension of likelihood of danger to law and order is unreasonable. The Petitioners mentioned that the official orders must not be kept secret by the State and the State must prove the necessity of the restrictions. The Counsel for Mr. Ghulam Nabi Azad emphasized that internet shutdown did not only violated freedom of speech but also snatched the right of political representatives to communicate with the people of their constituencies. It was contented that the validity of the act of the State should be tested as according to Article 19 and 21.
Mr. K.K. Venugopal who is the Attorney General for the Union of India argued that terrorism activities in the region of Jammu and Kashmir should be taken into account and these steps were taken as a preventive measure to avoid violence. This made the imposition of Section 144 of Cr.P.C. necessary. He made a note of the case of National Investigation Agency v. Zahoor Ahmad Shah Watali where the Supreme Court had addressed the problem of terrorism in Jammu and Kashmir. Tushar Mehta, Solicitor General of Jammu and Kashmir stated that the facts presented by the petitioners were incorrect because they were unknown to the actual facts of the situation. He also emphasized that cross border terrorism is very common in the region of Jammu and Kashmir so Section 144 of Cr.P.C. was necessary and gradually the impositions are being relaxed. He also stated that there was never a restriction on an individual’s movement and he presented figures on the working newspapers, radios and televisions from the area of Ms. Anuradha Bhasin.
The Solicitor General also mentioned that the internet services were limited and restricted because of the quick transmission of fake and provoking news through social media. He differentiated between newspaper and internet being two different kinds of media. He stated that internet gives a two-way communication and hence can prove to be a danger to the law and public order of the State. He also stated that the Suspension Rules are being reviewed strictly and were used reasonably.
Keeping in view the facts and arguments of the case, the following issues were raised:
- Whether exemption be claimed by the Government regarding the production of all orders passed under Section 144 Cr.P.C. and other orders under the Suspension Rules?
- Whether Fundamental rights under Part II of the Constitution of India includes the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over Internet?
- Whether the act of prohibition of internet access by the Government is valid?
- Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
- Whether the restrictions violated the freedom of press of the Petitioner in W.P. (C)No. 1031 of 2019?
ANALYSIS OF THE JUDGEMENT
The Supreme Court stated that its objective is to maintain a balance between the liberty and security so as to secure and enjoy the right to life in the best possible manner rather than looking at the political propriety of the decision. The petitioners claimed that the required orders were not available to them and thus could not be produced before the Court. The Respondents also accepted the fact of non-availability of orders. The Court noted that the non-availability of orders made it difficult to decide the validity of the decision. The Court cited the precedent of Ram Jethmalani v. Union of India where it was stated that the petitioners cannot be denied the necessary information they seek and the State is obliged to disclose information in order to avail the right to remedy given under Article 32 of the Constitution. The Court also clarified that right to freedom of expression guaranteed under Article 19 of the Indian Constitution can be extended to include right to freedom of print media. Court emphasized that online expression is an essential element of freedom of speech and expression under Article 19(1)(a) and the business and trade in which internet and online services are essential for functioning comes under authority of Article(1)(g). These freedoms can be restricted under Article 19(2) and 19(6) respectively. Looking upon Article 19(2), the Court decided that complete restrictions can be put on freedom of speech and expression but it has to be proved that other lesser alternatives cannot suffice the needs. The Court ensured that the restriction must not be beyond what is necessary. The petitioners also put forward that ‘law and order’ has a narrow ambit than ‘public order’ the invocation of Section 144 can justify the issue of ‘public order’ also. In Ram Manohar Lohia v. State of Bihar, it was held that mere disturbance in law and order does not necessarily leads to disturbance in public order.
The Court highlighted that it is important to look both substantive and procedural mechanism to determine the constitutional validity of the internet shutdown imposed in the region of Jammu and Kashmir. Suspension Rules under Section 7 of the Telegraph Act passed in 2017 gave permission to the Government to restrict telecom and internet services keeping in view certain safeguards. Section 5(2) of the Telegraph Act states that the restrictions can be imposed only in case of public emergency or in the interest of public safety and proper evidence has to be shown regarding the necessity of the restriction. The Court stated that “complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.”
Addressing the issues regarding the application of Section 144 of Cr.P.C., the Court observed that Section 144 can be imposed not only in the cases of present danger but also in cases of apprehension of danger. It is a preventive action against possible future violence and disturbances to public order and safety. But, indefinite restrictions under Section 144 is unconstitutional. It should be imposed only for a necessary period and cannot be used in a repetitive manner. The Court noted that the petitioners failed to prove the restrictions and difficulties in publishing newspapers. The Apex Court referred to the case of Channing Arnold v. The Emperor, where it was stated that “the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”
The Hon’ble Supreme Court in this judgement found that freedom of online expression and freedom to practice any profession through online means is protected by the Indian Constitution. The Court denied to lift the restrictions and left it into the discretion of the State to review it and remove the unnecessary impositions. The Court also ordered the restrictions to be of a temporary nature. This case widened the scope of Section 144 of Cr.P.C. by applying its use even in the cases where there is apprehension of danger. This case also made observations regarding the illegitimate use of Section 144 and its prohibition as it will lead to abuse of power of the State. But, the Court also stated that a responsible government should always take care of all the rights and needs of press and media and provide them protection in their freedom of speech. This case will always act as a precedent in cases where rights of media and freedom of press will be the issue for arguments. The judgements also faced criticisms. The Court could have put strict orders on the State to immediately review their restrictions imposed rather than again giving the discretion to the State. Press and Media is considered as the fourth pillar of democracy. It should be free from restrictions which curtail its power to work effectively and efficiently. The State should keep in view that media is the source of information for the public and curtailing its expression and communication can lead to stoppage of information to the public. The media should also work in a view not to harm the dignity of the State, refrain from spreading biased views and it should maintain and respect the ideals, values and sentiments of the society. Media should not be driven by the profit-earning concept rather than it should stick towards working for society’s welfare through providing people the accurate and adequate news without taking sides. This case may be challenged in future for the recognition of the freedom of expression, movement and communication of press and media and then all will look forward to more clear recognition of press rights. The Hon’ble Supreme Court may then give strict rules to the government so that the government is not at a dominating position and unreasonable restrictions should not degrade the quality of press and media in sharing vital information with the public.