Anuradha Bhasin v. Union of India (2020)

Introduction 

This case deals with the constitutional validity of restrictions imposed in Jammu & Kashmir following the abrogation of Article 370 in August 2019. The petitioners challenged the indefinite internet shutdown, restrictions on movement, and imposition of Section 144 CrPC. The core issue was the balance between national security and fundamental rights, especially freedom of speech, press, and trade via the internet. 

Facts 

• On 2^nd August 2019, the Home Department of Jammu & Kashmir issued a security advisory directing tourists and Amarnath Yatra pilgrims to leave the valley due to security concerns. 
• On 4^th August 2019, the Government imposed restrictions on movement, suspended mobile networks, internet services, and even landline connectivity across various districts in J&K. 
• On 5^th  August 2019, Constitutional Order 272 was issued by the President of India, effectively abrogating Article 370 and reorganizing the State of Jammu & Kashmir. 
• Section 144 CrPC was imposed across districts, banning public gatherings and restricting movement to prevent breach of peace. 
• Ms. Anuradha Bhasin, Executive Editor of Kashmir Times, claimed that these restrictions disrupted journalistic activity and led to the shutdown of the newspaper’s Srinagar edition since 6 August 2019. 
• Mr. Ghulam Nabi Azad, Member of Parliament, filed a separate writ petition alleging that he was prevented from traveling to his constituency and was unable to communicate with the people. 
• Both petitioners moved the Supreme Court under Article 32, seeking quashing of all orders imposing restrictions on communication and movement and requesting restoration of internet, phone, and other services. 
• The petitioners also sought framing of guidelines to ensure freedom of the press and access to communication during emergencies or sensitive political developments. 
• The Government claimed that such restrictions were necessary to prevent terrorism, preserve peace, and maintain law and order, especially in light of intelligence inputs and past experience of violence in the valley. 
• The petitioners argued that the orders were neither published nor made available, which made them impossible to challenge and lacked transparency or legal justification. 

Issues 

• Whether freedom of speech and trade through the internet is protected under the Constitution. 
• Whether the imposition of indefinite internet shutdowns and Section 144 orders were valid. 
• Whether the Government can withhold production of orders under Section 144 and Suspension Rules. 
• Whether the petitioners’ rights, especially press freedom, were violated.  

Court’s Observations 

• Fundamental Rights via Internet: 
  • The Court declared that freedom of speech and expression under Article 19(1)(a) and right to trade or profession under Article 19(1)(g) include the use of the internet as a medium. 
  • Thus, any restriction on internet access must satisfy tests under Articles 19(2) and 19(6)—i.e., be reasonable, necessary, and proportionate. 
• On Indefinite Internet Shutdowns: 
  • The Court held that indefinite suspension of internet services is not permissible under the law. 
  • Suspension of telecom services must comply with the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, and must be reviewed every 7 days by a Review Committee. 
• Requirement to Publish Orders: 
  • The Government must publish all orders imposing restrictions so that they can be legally challenged. 
  • Secret or undisclosed restrictions violate natural justice and rule of law. 
  • Referring to Ram Jethmalani v. Union of India, the Court reiterated that transparency is essential in cases affecting fundamental rights. 
• On Section 144 Orders: 
  • Section 144 CrPC cannot be used to suppress legitimate expression or dissent. 
  • Such orders must be based on objective material, cannot be applied generally to the public, and must identify specific threats or persons. 
  • The State cannot indefinitely rely on Section 144 to impose blanket restrictions over an entire area. 
• Doctrine of Proportionality: 
  • Any restriction on fundamental rights must pass the four-pronged test of proportionality: legitimate aim, necessity, rational connection, and least restrictive means. 
  • The Court stressed the importance of “least restrictive” options, like blocking only social media instead of a total internet ban. 
• On Press Freedom: 
  • The Court recognized that press freedom is essential in a democratic society. 
  • It acknowledged the chilling effect of communication blackouts on the media’s ability to function. 
  • However, due to lack of factual evidence of direct targeting of media, it did not conclude that press freedom had been expressly violated. 
• No Blanket Power to Restrict: 
  • The Court clarified that national security is important, but cannot be used as a blanket justification to bypass constitutional safeguards. 
  • Authorities must justify restrictions based on actual threats, and courts retain jurisdiction to review such executive actions. 
• Use of Technology in Rights Protection: 
  • The Court emphasized that law must evolve with technology, and the internet is a critical enabler of rights, even if it is not a fundamental right in itself. 
  • Referring to earlier cases like Shreya Singhal v. Union of India, the Court reiterated that freedom of expression covers all modern mediums including cyberspace.