Supreme Court Declares Internet Access a Fundamental Right Under Article 19: Anuradha Bhasin vs. Union of India (2020)

Introduction

Date of the Judgment: 10 January 2020

Citation: (2020) INSC 10

Judges: N.V. Ramana, J., R. Subhash Reddy, J., B.R. Gavai, J.

Can the government impose a complete shutdown of internet services? The Supreme Court of India recently addressed this crucial question in a landmark judgment, clarifying the extent of fundamental rights in the digital age. This case, Anuradha Bhasin vs. Union of India, delves into the balance between liberty and security, particularly concerning internet access in Jammu and Kashmir.

The core issue revolved around the restrictions imposed on communication, including internet services, in Jammu and Kashmir following the issuance of a Security Advisory by the Government of Jammu and Kashmir. The petitioners challenged these restrictions, arguing that they violated fundamental rights, particularly the freedom of speech and expression and the freedom to carry on trade and business.

The judgment was authored by Justice N.V. Ramana, with Justices R. Subhash Reddy and B.R. Gavai concurring.

Case Background

The case originated from a Security Advisory issued by the Government of Jammu and Kashmir, advising tourists and Amarnath Yatris to curtail their stay and return for safety reasons. Subsequently, educational institutions and offices were ordered shut. On 04.08.2019, mobile phone networks, internet services, and landline connectivity were all discontinued in the valley, with movement restrictions imposed in some areas.

On 05.08.2019, Constitutional Order 272 was issued, applying all provisions of the Constitution of India to the State of Jammu and Kashmir. District Magistrates, apprehending a breach of peace, imposed restrictions on movement and public gatherings under Section 144 of the Code of Criminal Procedure (Cr.P.C.).

Due to these restrictions, the Petitioner in W.P. (C) No. 1031 of 2019, a journalist, claimed that the movement of journalists was severely restricted, and the Kashmir Times Srinagar Edition could not be distributed. The Petitioner in W.P. (C) No. 1164 of 2019, a politician, alleged that he was stopped from traveling to his constituency.

Aggrieved by these actions, the Petitioners approached the Supreme Court seeking the restoration of all modes of communication, including mobile, internet, and landline services, and for the free and safe movement of journalists.

Timeline

Course of Proceedings

When W.P. (C) No. 1164 of 2019 was listed before a Co-ordinate Bench of the Supreme Court on 16.09.2019, the Court permitted the petitioner to visit certain districts in Jammu and Kashmir, subject to restrictions, and directed the State and Union of India to respond to the prayers in the writ petition.

When W.P. (C) No. 1031 of 2019 was listed on 16.08.2019, it was tagged with another matter and later de-tagged. On 16.09.2019, a Co-ordinate Bench of the Supreme Court directed the State to restore normal life and communication, subject to national security concerns. On 16.10.2019, the Supreme Court directed the Union of India to produce the orders relating to the restrictions, and the matter was listed for final disposal on 05.11.2019.

Legal Framework

The judgment primarily considered the following legal provisions:

• Article 19(1)(a) of the Constitution of India: Guarantees the freedom of speech and expression.
• Article 19(1)(g) of the Constitution of India: Guarantees the freedom to practice any profession, or to carry on any occupation, trade, or business.
• Article 19(2) and 19(6) of the Constitution of India: Provides for reasonable restrictions on the rights guaranteed under Article 19(1)(a) and 19(1)(g).
• Section 144 of the Code of Criminal Procedure (Cr.P.C.): Empowers magistrates to issue orders in urgent cases of nuisance or apprehended danger.
• Section 5(2) of the Indian Telegraph Act, 1885: Empowers the government to take possession of licensed telegraphs and order the interception of messages under certain conditions.
• The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017: Rules framed under the Telegraph Act, 1885, outlining the procedure for suspending telecom services.

The Court emphasized that any restrictions on fundamental rights must be “reasonable” and in line with the limitations provided under the Constitution. The Court also noted that the freedom of speech and expression includes the right to disseminate information to as wide a section of the population as possible, and that the internet has become a major means of information diffusion.

Arguments

Submissions on behalf of Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No. 1031 of 2019:

• The restrictions imposed on the press post 05.08.2019, prevented the petitioner from functioning.
• The unavailability of internet services, which is essential for the modern press, brought print media to a halt.
• Curtailment of the internet is a restriction on the right to free speech and should be tested on the basis of reasonableness and proportionality.
• The procedure for restricting internet services under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, were not followed.
• The orders did not provide any reasoning as to the necessity of the restrictions.
• The orders were based on an apprehension of a law and order situation, which is not the same as public order.

Submissions on behalf of Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. (C) No. 1164 of 2019:

• The orders of the authorities had to be produced before the Court and could not be subject to privilege.
• The State’s conduct in producing documents during argumentation was improper as it did not allow the Petitioners sufficient opportunity to rebut them.
• The Union of India can declare an emergency only in certain limited situations, none of which were shown in the present case.
• Orders restricting movement under Section 144, Cr.P.C. did not indicate any existing law and order issue or apprehension thereof.
• An order under Section 144, Cr.P.C. cannot be passed to the public generally and must be specifically against those apprehended to disturb the peace.
• The State had not indicated the necessity to block landline services.
• The restrictions imposed under the Indian Telegraph Act, 1885, need to follow the provisions of Section 5 of the Telegraph Act, in line with Article 19 of the Constitution.
• While imposing restrictions, the rights of individuals need to be balanced against the duty of the State to ensure security. The State must ensure measures are in place to allow people to continue with their lives.
• A less restrictive measure, such as restricting only social media websites, should have been passed.

Submissions on behalf of Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No. 139141 of 2019 in W.P. (C) No. 1031 of 2019:

• Restrictions on freedom of speech should be reasonable and tested on the anvil of proportionality.
• Section 144, Cr.P.C. orders should be based on objective material, not conjectures.

Submissions on behalf of Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A. No. 139555 in W.P. (C) No. 1031 of 2019:

• Balancing national security with citizens’ rights is not unique and has been undertaken by courts in various jurisdictions.
• Restrictions imposed by the State are an attempt to justify the restrictions due to prevailing circumstances, which should be rejected.
• Article 32 of the Constitution is a fundamental right that allows for the enforcement of other fundamental rights.
• The wide restrictions imposed by the State are in contravention of the Government of India National Telecom Policy, 2012.
• Restrictions meant to be temporary have lasted for more than 100 days.

Submissions on behalf of Ms. Meenakshi Arora, Senior Counsel for the Intervenor in I.A. No. 140276 in W.P. (C) No. 1031 of 2019:

• Any action of the State must demonstrate five essential features: (a) backing of a ‘law’, (b) legitimacy of purpose, (c) rational connection of the act and object, (d) necessity of the action, and (e) proportionality.
• The validity of the orders should be tested by reference to the facts and circumstances prevailing on the date of passing of the said orders, i.e., 04.08.2019.
• Orders that have not been published cannot be accorded the force of law.
• The State must prove that it was necessary to restrict the people’s right to speak their view.
• The test of proportionality must be upheld while looking at the restrictions imposed by the State on the fundamental rights of citizens.

Submissions on behalf of Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P. (Crl.) No. 225 of 2019:

• Although he and his family were law-abiding citizens, they were suffering the effects of the restrictions.

Submissions on behalf of Mr. K. K. Venugopal, Learned Attorney General for the Union of India:

• The background of terrorism in the State of Jammu and Kashmir needs to be taken into account.
• It would have been foolish not to have taken preventive measures in the circumstances.
• The necessity of the orders under Section 144, Cr.P.C. are apparent from the background facts and circumstances.

Submissions on behalf of Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir:

• The first and foremost duty of the State is to ensure security and protect the citizens.
• The historical background of the State of Jammu and Kashmir is necessary to understand the measures taken by the State.
• The abrogation of Article 370 of the Constitution on 05.08.2019 was a historic step that conferred rights upon the citizens of Jammu and Kashmir.
• Individual movement had never been restricted.
• The Magistrates were best placed to know the situation on the ground and took their respective decisions accordingly.
• All newspapers, television, and radio channels were functioning.
• Orders passed under Section 144, Cr.P.C. can be preventive in nature. The Magistrate can pass the order even on the basis of personal knowledge.
• It was impossible to segregate and control troublemakers from ordinary citizens.
• There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution.
• The Court does not sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C.
• Internet was never restricted in the Jammu and Ladakh regions.
• Social media could be used as a means to incite violence. The purpose of the limited and restricted use of the internet was to ensure that the situation on the ground would not be aggravated by targeted messages from outside the country.
• The jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different.
• It is not possible to ban only certain websites/parts of the Internet while allowing access to other parts.
• The orders passed under the Suspension Rules were passed in compliance with the procedure in the Suspension Rules.

Summary of Submissions

Issues Framed by the Supreme Court

1. Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?
2. 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?
3. Whether the Government’s action of prohibiting internet access is valid?
4. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
5. Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court considered the following authorities:

Key Findings and Observations

The Supreme Court made several critical observations and findings:

• Internet as a Fundamental Right: The Court unequivocally declared that access to the internet is a fundamental right under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (freedom to carry on any trade or business). This recognition of internet access as a fundamental right is a landmark decision, acknowledging the internet’s role in modern life and democratic processes.
• Restrictions on Internet Access: The Court emphasized that any restrictions on internet access must be temporary, proportionate, and based on a reasoned order. A complete shutdown of the internet is not permissible and must be justified by compelling reasons. The Court held that the government must justify why a complete shutdown is necessary and not merely a restriction on certain websites or services.
• Section 144 of Cr.P.C.: The Court clarified that the power under Section 144 of the Code of Criminal Procedure cannot be used to suppress legitimate expression or democratic rights. Such orders must be based on material facts and be proportionate to the situation. The Court noted that the power under this provision is not meant to be used to suppress the freedom of speech and expression.
• Transparency and Accountability: The Court stressed that the government cannot claim exemption from producing all orders passed under Section 144, Cr.P.C. and the Suspension Rules. Transparency and accountability mandate the production of these orders to ensure that the State is acting within the bounds of the law.
• Freedom of the Press: While the Court did not find a direct violation of the freedom of the press in this particular case, it emphasized the importance of press freedom as a cornerstone of democracy. The Court noted that the press plays a vital role in disseminating information and holding the government accountable.
• Balancing Rights and Security: The Court acknowledged the State’s duty to ensure security and public order but emphasized that this duty must be balanced with the fundamental rights of citizens. The Court stressed that any restrictions must be narrowly tailored and must not be disproportionate to the threat.

Final Decision and Directions

The Supreme Court, based on its findings and observations, issued the following directions:

• Review of Orders: The Court directed the authorities to immediately review all orders restricting internet access and other communication services in Jammu and Kashmir. The Court emphasized that any restrictions must be temporary and proportionate.
• Publication of Orders: The Court ordered that all orders imposing restrictions, including those under Section 144, Cr.P.C., and the Suspension Rules, must be made public. This is to ensure transparency and accountability.
• Reasoned Orders: The Court directed that any future orders restricting internet access must be supported by reasons and must specify the duration of the restrictions. This is to ensure that such restrictions are not arbitrary and are based on a valid assessment of the situation.
• Periodic Review: The Court directed that restrictions on internet access must be reviewed periodically to ensure that they are still necessary and proportionate. This is to ensure that restrictions are not imposed for longer than necessary.
• Freedom of Press: The Court reiterated that the freedom of press is vital in a democracy and the government must respect the same.

The Supreme Court’s judgment in Anuradha Bhasin vs. Union of India is a landmark decision that has far-reaching implications for internet freedom in India. By declaring internet access a fundamental right, the Court has set a precedent for future cases involving digital rights and has ensured that the government cannot arbitrarily restrict access to the internet.

Flowchart: Process of Imposing Restrictions

Additional Resources

• Full Text of the Judgment on IndianKanoon
• LiveLaw Article on the Judgment
• Bar and Bench Article on the Judgment