Anuradha Bhasin V. Union Of India

WRIT PETITION (CIVIL) NOS. 1031 AND 1164 OF 2019

DECIDED ON: 10.01.2020

Equivalent Citation: (2020) 1 MLJ 574
Bench: N.V.Ramana, V. Ramasubramanian

Background:

On 02.08.2019, the Government of Jammu and Kashmir advised tourists and pilgrims to leave the State of Jammu and Kashmir. Schools and offices were ordered to be closed until further notice.

On 04.08.2019, mobile phone networks, internet services, landline connectivity were shut down in the State.

On 05.08.2019, the Constitutional Order No. 272 was passed by the President of India applying all the provisions of the Constitution of India to Jammu and Kashmir which had been enjoying special status under Article 370 of the Indian Constitution.

Facts:

The District Magistrate imposed restrictions on the freedom of movement and public assembly under Section 144 of the Code of Criminal Procedure, 1973.

The Petitioner claimed that the movement of the journalists was severely restricted and all modes of communication were suspended in the State of Jammu and Kashmir which violated their freedom of speech and expression.

Laws applicable:

Article 19(1)(a) of the Indian Constitution – Right to Freedom of Speech and Expression.
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All citizens shall have the right to freedom of speech and expression.

Section 144(1) of Code of Criminal Procedure, 1973 – Power to issue in urgent cases of nuisance of apprehended danger.
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In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.

Issues:

The Supreme Court framed the following issues:

Whether the Government can claim exemption from producing all the orders passed under Section 144 and other orders under the Suspension Rules?

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?

Whether the Government’s action of prohibiting internet access is valid?

Whether the imposition of restrictions under Section 144 were valid?

Whether the freedom of press of the Petitioner in this Writ Petition was violated due to the restrictions.

Arguments:

Petitioner’s Arguments:

The curtailment of the internet, is a restriction on the right of free speech.

The suspension of internet services should be only for a temporary nature and time and the reason for such necessity should be stated properly.

A blanket ban on the internet services cannot be imposed since it affects the freedom of free speech and expression.

The order of restriction under Section 144 was not published for public notice and therefore, cannot be enforced.

The State should show the necessity of such order since every citizen is guaranteed the right to freedom of speech and expression by the Constitution of India.

The publication of the law is necessary and also part of the rules of natural justice and therefore the order should be made available and accessible by the public.

Respondent’s Arguments:

The learned Solicitor General of India contended that the facts stated by the Petitioners were incorrect about the factual position prevailing in the land of Jammu and Kashmir.

The restrictions imposed were relaxed on the basis of threat perception.

The restriction on internet and communications was to prevent the communication of messages through social media which might incite violence and threat aggravated from outside the country.

The Internet can be used as a tool to spread violence and therefore, there was a need to restrict internet and communication services.

Judgment:

The Supreme Court in the case of Ram Jethmalani v. Union of India (2011) 8 SCC 1 explained that the State is obligated to disclose information in order to satisfy the right to remedy as established in Article 32 of the Constitution of India.

Article 19 includes the Right to Information as an important Fundamental Right of Speech and Expression and any order restricting the Fundamental Right of the citizens should be made available to them.

The State in the present case produced some orders citing that it cannot produce all the orders. The Court stated that this cannot be a valid ground or reason to refuse to produce the order.

The test of proportionality and reasonable restriction were applied to assess whether restriction can be imposed on freedom of speech online.

The Court concluded that the freedom of expression and freedom to practice any profession over the internet was protected by the Constitution.

The Government can suspend the Internet, but the necessity should be proved and can be done only for a temporary period.

The Restrictions under Section 144 of the Code of Criminal Procedure cannot be used to suppress the legitimate expression and are subject to judicial scrutiny. Therefore, the Court ordered the State to review the restrictions imposed by it.

The Court concluded that the freedom of speech and expression over the medium of internet is protected under Article 19 of the Constitution of India.

This judgement is considered to be a landmark ruling since this has given rise to the basic structure of the Constitution. This judgement had categorized the amendments by mentioning that any amendment which goes against the basic structure cannot be amended.

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