Analysis of Anuradha Bhasin v. Union of India landmark case under IT Act 2008

1. ANURADHA BHASIN
V.
UNION OF INDIA
RISHABH MALHOTRA SAP ID: 500097512
JANUARY’22 – MAY’22

2. CITATIONS
• W.P. (Civil) No. 1031 of 2019
• W.P. (Civil) No. 1164 of 2019
• W.P. (Criminal) No. 225 of 2019
• AIR 2020 SC 1308 – Final Decision Citation

3. NAME OF THE JUDGES
• Hon’ble Justice N. V. Ramana
• Justice Subhash Reddy
• Justice B. R Gavai

4. NAME OF THE PETITIONERS
• Ms. Anuradha Bhasin (W.P. (C) No. 1031 of 2019)
• Mr. Ghulam Nabi Azad (W.P. (C) No. 1164 of 2019)

5. LEGAL PROVISIONS
• Constitution of India: Article 19(1)(a) and Article 19(1)(g), Article 32, Article 356
• Code of Criminal Procedure, 1973: Section 144
• Information Technology Act, 2000 – Section 69A
• Information Technology (Procedures and Safeguards for Blocking for Access of Information by
Public) Rules, 2009
• The Telegraph Act, 1885 – Section 5
• The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules,
2017.

6. FACTS

7. • On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being
imposed in some areas.
• On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and
Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on
the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of
powers vested under Section 144 of Cr.P.C.
• Due to the aforesaid restrictions, the Petitioner in W.P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on
05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to
publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.
• Aggrieved by the same, the Petitioners approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ:
1. For setting aside or quashing all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of
communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or
unavailable in any locality and restoring all modes of communication including mobile, internet and landline services throughout J & K in order to provide an
enabling environment for the media to practice its profession.
3. Directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel.
4. Framing of guidelines ensuring that the rights and means of media personnel to report and publish news is not unreasonably curtailed.

8. • Mr. Ghulam Nabi Azad was stopped from travelling to his constituency in J & K. On 16.09.2019, the order was passed on W.P. (C) No. 1164 of 2019 by Mr.
Ghulam Nabi Azad under he was allowed to visit the places subject to restrictions under following grounds.
• On 01.10.2019, Bench directed that no further intervention applications shall be entertained. However, liberty was granted to file additional documents in
support of applications for intervention.
• On 24.10.2019, after the aforesaid orders were placed on record and pleadings were complete, the matter was listed for final disposal on
05.11.2019. Taking into account the concerns expressed by the parties, we extensively heard the counsel for both sides, as well as all the
Intervenors on 05.11.2019, 06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019, 26.11.2019 and 27.11.2019, and considered all the submissions
made and documents placed before court.

9. PETITIONER
ARGUMENTS

10. W.P. (CIVIL) 1031 OF 2019
• The petition was brought by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition. She argued the internet is essential for the modern press and
that by shutting it down, the authorities forced the print media to come to “a grinding halt.” Because of this she had been unable to publish her newspaper since
August 6, 2019. She also argued that the government failed to consider whether the internet shutdown was reasonable and proportionate to the aims it pursued. She
argued that the restrictions were passed in the belief that there would be “a danger to law and order. However, public order is not the same as law and order and
neither were at risk when the order was passed.”
• An Intervenor in the matter argued that by giving the State carte blanche to restrict fundamental rights in the name of national security and terrorism prevention
would allow the State to impose broad restrictions on fundamental rights in varied situations. Further, the restrictions censored the discussion of the passage of the
Constitutional Amendment stripping Jammu and Kashmir of special status by the persons living there. Lastly, the restrictions were supposedly temporary in nature,
but lasted over 100 days.
• Another Intervenor in this matter argued that the State failed to prove the necessity of the restrictions. “The people have a right to speak their view, whether good,
bad or ugly, and the State must prove that it was necessary to restrict the same.” Further, the petitioner argued that the restriction was not proportionate. The State
had to consider the effect of the restrictions on fundamental rights, which did not occur here. “it is not just the legal and physical restrictions that must be looked at,
but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.”

11. W.P. (CIVIL) 1164 OF 2019
The petitioner Mr. Ghulam Nabi Azad (a Member of Parliament belonging to the largest opposition party in India’s upper house) argued that restrictions
must be based on objective reasons and not merely on conjectures. Moreover, the official orders must not be kept secret by the State. The state of
emergency used by the authorities to justify the restrictions could be declared only in light of an “internal disturbance” or “external aggression” under
Article 356 of the Constitution, neither of which occurred. Further, the petitioner argued that restrictions on movement must be specific in scope,
targeting those who may disturb the peace, and cannot be applied broadly against the public in general. When imposing restrictions, the State must choose
the least restrictive measures and balance the safety of people with the lawful exercise of their fundamental rights, which did not occur here.
Concerning the internet shutdown, the petitioner argued that internet restrictions did not merely affect freedom of expression but also the right to trade
as well as the ability of political representatives to communicate with their constituents.

12. W.P. (CRIMINAL) NO. 225 OF 2019
• The petition was withdrawn at some state, but the court noted that it argued that the restrictions caused broad harm even
to regular and law-abiding citizens.
Reference Case:
 National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1
Background on terrorism and necessity preventive measures required regarding cross border terrorism and internal
militancy.

13. RESPONDENT
ARGUMENTS

14. • The Attorney General argued that the restrictions were a measure to prevent terrorist acts and were justified considering the history of cross
border terrorism and internal militancy that had long plagued the State of Jammu and Kashmir. The Attorney General recalled that similar steps
had been taken in the past, for example, in 2016 after a terrorist had been killed there.
• The Solicitor General reiterated the historical necessity argument and noted that a State’s first and foremost duty is to ensure security and
protect the citizens’ lives. He also argued that the facts laid down by the petitioners were false and exaggerated the effects of the restrictions.
Particularly, he noted that individual movement had never been restricted, that restrictions were imposed only in certain areas and were relaxed
soon after, and that all newspapers, television and radio channels were functioning.
• Further, the Solicitor General argued that even before the Constitutional Order for abrogating Article 370 had been issued, the issue was a
subject of speculation in Jammu and Kashmir, including provocative speeches and messages. Accordingly, government officers on the ground
decided that the restrictions were necessary, and courts have limited jurisdiction to question their judgment since issues of national security
were at stake.

15. • Specifically, concerning the communications and internet shutdown, the Solicitor General submitted that the internet was never restricted in the
Jammu and Ladakh regions. He added that social media, which allowed people to send messages and communicate with a number of people at the
same time, could be used as a means to incite violence. According to him, the internet allowed for the transmission of false news or fake images,
which were then used to spread violence. Further, he claimed that the “dark web” allowed individuals to purchase weapons and illegal substances
easily.
• The Solicitor General rejected the argument that free speech standards as they related to newspapers applied to the internet on the grounds
that their differences were too great. He explained that while newspapers only allowed one-way communication, the internet made it possible to
communicate in both directions, making dissemination of messages very simple. He concluded that it was not possible to ban only certain
websites or parts of the Internet while allowing access to other parts, as the government learned in 2017.

16. ISSUES

17. 1. Whether the Government’s action of prohibiting internet access is valid?
2. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the
restrictions?
3. Whether the Government can claim exemption from producing all of the restriction orders?
4. Whether 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 protected by Article 19(1)(a) and Article
19(1)(g) of the Constitution?
5. Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was
valid?

18. THE LEGALITY OF THE INTERNET SHUTDOWN
• Having laid out the principles of proportionality and reasonable restrictions, the Court turned to assessing the restriction imposed on freedom of speech
online. It outright rejected the State’s justification for a total ban on the internet because it lacked the technology to selectively block internet services as
accepting such logic would have given the State green light to completely ban internet access every time. However, the Court conceded that there was
“ample merit in the contention of the Government that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of
India” and thus it had to determine the extent to which the restriction burdened free speech.
• The Court highlighted that it had to consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown.
The procedural mechanism has two components. First, there is the contractual component between Internet Service Providers and the Government. Second,
there is the statutory component as enshrined under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act. In
its analysis, the Court focused largely on the latter as it directly applied to the case at hand.
• The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the government to restrict telecom services, including access
to the internet, subject to certain safeguards. Furthermore, Section 5(2) of the Telegraph Act permitted suspension orders only in a situation of public
emergency or in the interest of public safety.
• The suspension rules did not explicitly mention the maximum duration of a suspension order. Hence, it is up to the Review Committee to determine the
duration and to make sure it does not exceed beyond such period which is necessary.

19. FREEDOM OF PRESS
• The Court rejected this plea. It is unquestioned that freedom of the press is one of the quintessential features of a democracy,
which is very well protected by the Constitution. The petitioner failed to produce any evidence that the orders passed by the
state-imposed restrictions on the freedom of press including publication of newspaper and their distribution.
• Therefore the court couldn't discover whether such a claim was legitimate or not. Since then the petitioner has resumed
publication. Hence the court held it to be not violative and believed the government to be taking care of the freedom of the
press.

20. LIST OF REFERENCE CASES
• Maneka Gandhi v. Union of India, (1978) 1 SCC 248 & K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 – laid down the need for
procedural justice in cases relating to restrictions which impact individuals’ fundamental rights.
• People’s Union for Civil Liberties (PUCL) v. Union. Of India, (1997) 1 SCC 301 – Orders for phone-tapping was passed under section
5(2) of Telegraph Act.
• Shreya Singhal v. Union of India, (2015) 5 SCC 1 – The court upheld the constitutional validity of Sec 69A of IT Act r.w. the IT
(Procedures & Safeguards for Blocking for Access of Information by Public) Rules, 2009.
• National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 - Background on terrorism and necessity preventive
measures required regarding cross border terrorism and internal militancy.
• Bennett Coleman v. Union of India, , (1972) 2 SCC 788 & Sakal Papers (P) Ltd. v. Union of India, (1962) 3 SCR 842 – It has been
declared by court that Freedom of Press is a valuable and sacred rig.ht enshrined under Article 19(1)(a) of the Constitution.
• A.K. Gopalan v. State of Madras, AIR (1950) SC 27 – The test of ‘direct impact’ was laid down to identify the restrictions imposed by
government on fundamental rights under Article 19(2) , impact on public.

21. DECISION
• The court held that the prohibition for access to the internet will only be valid in certain circumstances only otherwise it'll cease to exist. Such impositions
affect the Fundamental Rights of the people, therefore the court ordered to follow the test of Proportionality to satisfy that no kind of violation of natural
justice exists.
• The court did not remove the restrictions on internet and movement of the citizens, however, the judgement deliver widened the interpretation of freedom
of speech and expression by including the right to access the internet which was an essential part of the Article which could only be restricted in the
situation of national security.
• The judgement did not provide immediate relief to the citizens affected due to these orders but laid down principles for future suspension orders and their
procedure to prevent the state for abuse of power. This is a solution for further issues.
• The Internet has become a tool for spreading a piece of important news or is necessary for a two-way conversation. It has become an integral part of the
life of people. In a situation such as today's, the circumstances of coronavirus lockdown, wherein because of internet connection students all over the
world can have access to education even after staying at home, people around the world can work and make money for their living.
• In a situation such as this internet plays a crucial role, which now has become a right in the interpretation of Right of Freedom and expression under Part
III of the Indian Constitution.

22. REFERENCES
• Global Freedom of Expression:
https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-
india/#:~:text=Anuradha%20Bhasin%2C%20the%20editor%20of,newspaper%20si
nce%20August%206%2C%202019.
• Supreme Court of India:
https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Jud
gement_10-Jan-2020.pdf