Right To Internet: Anuradha Bhasin v. Union Of India, 2020
Table Of Contents:
- Argument Advanced
-W.P ( c ) No. 1031 of 2019
-W.P. ( c) No. 1164 of 2019
-W.P. ( crl.) No. 225 of 2019
-Mr. k.k Venugopal, Attorney General for Union of India
-Mr. Tushar Mehta, Solicitor General for the Jammu and Kashmir
Jammu and Kashmir is cherished in our heart as a “Paradise On Earth” but the history of this eternally beautiful place is notched with violence and militancy. While the beauty of the mountains and valleys spell tranquility, yet the blood is shed every day. In this land of inherent disputes, this petition is added to the list.
Jammu and Kashmir is an Indian Territory which shares the border with Pakistan. Jammu and Kashmir has been the matter of a decades long dispute between the two countries i.e. India and Pakistan. By the virtue of the Article 370 of the Constitution Of India, the territory of Jammu and Kashmir enjoyed special status. It had its own constitution.
On August 5, 2019, the historical decision was taken and the Government of India issued an order i.e. Constitution (Application to Jammu and Kashmir) Order,2019, which deprived Jammu And Kashmir of its special status that the territory had enjoyed since 1954.
- The root of the issue starts with a Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir on August 2 advising the tourists in J&K and Amarnath Yatra devotees to leave the Jammu and Kashmir area in India in the interest of safety and security.
- Further restrictions were also imposed on the shut-down of educational institutions and offices until further notice.
- On August 5, 2019 the Constitutional Order No: 272 was also passed by the honorable President of India which led to the application of the provisions of Constitution of India to Jammu and Kashmir and deprived the territory from special status that it had enjoyed since 1954.
- On the same day, the District Magistrate passed the order imposing restrictions on the following by the virtue of the powers vested under Section 144 of Crpc:
- Online communication
- Freedom of movement
- Freedom of public assembly
- Mobile networks, landline connectivity
- Whether the Government’s action of prohibiting internet access is valid ?
- Whether the freedom of speech and expression and freedom to practice any profession ,or to carry on any trade, occupation, business over the internet is a part of Fundamental Rights under Indian Constitution?
- Whether the imposition of restrictions under Section 144, Crpc were valid ?
- Whether the freedom of Press of the Petitioner W.P. ( c ) No. 1031 of 2019 Anuradha Bhasin was violated due to restriction?
- W.P. (C ) No. 1031 of 2019:
The petition was filed by Ms. Anuradha Bhasin, who is the executive editor of the Kashmir Times Newspaper, Srinagar Edition. She approached the Supreme Court under Article 32 of the Indian Constitution requesting issuance of a suitable writ for quashing or setting aside any and all orders, directions issued by the Respondents which led to the the restrictions on freedom of movement, freedom of communication, complete shut-down on mobile, internet and fixed line telecommunication services in the region. Ms. Vrinda Grover, counsel for the Petitioner w.p. (c ) no. 1031 of 2019, contended that the petitioner was not able to publish newspaper due to the restrictions imposed by the Respondents. She further contended that the Internet is necessary for the modern press and Print media came to a ‘grinding halt’ due to the restrictions.
Another argument was that, the curtailment of the internet is a restriction on the right to freedom of speech and expression guaranteed under Article 19 of the Indian Constitution and same should be tested on the basis of proportionality, further submitted that the orders were not in accordance with the procedure prescribed under the Suspension Rules and the Government of India did not provide any reasoning as to the necessity of the restrictions as required under the Suspension Rules. Lastly she contended that the orders were passed on mere belief that there would be a “danger to law and order”. Moreover the public order is not the same as law and order and neither was at risk when the orders were issued.
An intervenor in the same matter contended that there is a need for the state to have a balance between the security and integrity of the nation and violating the rights of the citizens for the same. Lastly he contended that the restrictions were meant to be temporary in nature, but it lasted over 100 days.
Another intervenor came forward in this matter and argued that the State did not prove the necessity of the restrictions. “The people have a right to speak their views, opinions, whether good, bad or ugly, and the state must prove that it was necessary to restrict the same”. State must consider the effect of such restrictions on fundamental rights, “it is not just the legal and physical restrictions that must be focused at, but also the fear that these sorts of restrictions left in the minds of the people.
- W.P (C ) No. 1164 of 2019
Mr. Kapil Sibal, Senior counsel for the petitioner Mr. Ghulam Nabi Azad (Member of Parliament). The petitioner argued that the Union of India can declare an emergency only in situations, like any ‘internal disturbance’ or any ‘external aggression’ but in this case, neither has been shown up for the imposition of restrictions. With respect to the order issued under the Section 144 of Crpc, the senior counsel also added that this order was issued to deal with the ‘law and order’ situation but there was no such existing law and order issue when the order was passed.
He further pointed out that the Magistrates can not pass the order to the public generally as per the provisions of Section 144 of Crpc, the orders must be specifically against the people or the group which is likely to disturb the peace .On internet restrictions, the senior counsel contended that such restrictions not only violate the freedom of speech and expression but also impinges their right to profess any profession and carry on any trade or occupation.
The state must find a balance that allows people to continue with their life. The counsel also emphasized on the term “reasonable” mentioned under Article 19(2) of the constitution, which says that the restrictions should be reasonable. Lastly, these restrictions need to be tested on the basis of the Test of Proportionality.
- W.P. (Crl.) No. 225 of 2019
The petitioner submitted the restrictions imposed caused harm even to law-abiding citizens, which was further defended by the India’s Attorney General and Solicitor General, although the petition was withdrawn during the arguments.
- Mr. K.K Venugopal
Mr. KK Venugopal, Attorney General for Union Of India submitted that the background of terrorism in the region of Jammu and Kashmir has to be taken into consideration. He added that the Union of India thought of every aspect before passing the order. ‘The cognizance of the problem in J&K’ was taken into consideration. He made a statement that “it will be foolish not to take any safety measures even after knowing cross border terrorism in the region.
- Mr. Tushar Mehta
1.Mr. Tushar, the Solicitor General submitted that the priority of the state is to protect the citizens and knowing the blood shed history of Jammu and Kashmir, such protectory measures are necessary to be taken. He added that the state is suffering from both physical and digital cross boreder terrorism. He countered the argument of the petitioner by stating that “they don’t know the actual situation prevailing in the J&K and individual movements were never restricted”. The restrictions imposed earlier are now gradually being relaxed.
- He further countered the argument of the petitioner pointing out the orders issued by the respective magistrates under Section 144 of Crpc by stating that they were best to know the actual situation of that area. And all televisions, news channels,radio channels and newspapers are functioning without restrictions including that from Srinagar where petitioner is situated. There were no such restrictions in Ladakh area which clearly shows that there was a complete planning and application of mind while passing the order.
- He submitted that the orders passed can be justified under the maintenance of the “security of the state ” by seeing the situation in Jammu And Kashmir. It is not possible to segregate the rabble-rousers from the other citizens countering the arguments that restrictions should be imposed on trouble makers.
- In the last submission, he submitted that the internet was never banned in Jammu and Ladakh region. He further added that the internet can be used to spread fake news, images, messages and it can be sent and received to a number of people at once which can lead to incite violence. Through newspapers there is only one way communication but in the case of the internet there is two way communication which makes it easy to circulate. He countered that different reasoning is to be applied while putting the restrictions. And last but not the least, the orders passed followed the procedure in Suspension Rules and are being reviewed strictly.
In the said judgement, the Hon’ble Supreme Court said that the Government can not justify the shutdown on internet services under Section 69A of the Information Technology Act, 2000 read with IT Rules, 2009. As per Suspension Rules under Section 7 of Telegraph Act, Rule 2(2) emphasizes that the order passed by any competent authority must include what were the “unavoidable” circumstances which led to the passing of the order. In Hukam Chand Shyam Lal v. Union of India, the SC interpreted Section 5 of the Telegraph Act and the same was followed in PUCL v. Union Of India. With regards to Issue 1, the court held that prohibiting internet access is valid but there must be unavoidable circumstances
Otherwise the order will cease to exist. With regards to Issue 2 the court held that the freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a). The court has emphasized on its earlier judgement in Indian Express v. Union of India case. The court held that the freedom of speech and expression through the internet is a fundamental right under Article 19(1)(a) and emphasized on the word “reasonable” restrictions can be put. With regards to Issue 3, the court held that the Section 144 of CrPc can be exercised when there is present danger or apprehension of danger. It can’t be used to suppress legitimate opinion. An order passed under Section 144 should state material facts to enable judicial review of the same. It is the duty of the Magistrate to apply principle of proportionality on the restrictions and should balance the rights.
With regards to Issue 4, the court rejected the plea of the petitioner Anuradha Bhasin by stating that the petitioners failed to offer any concrete evidence on the same and also mentioned the case of Channing Arnold v. The Emperor.