This Case Commentary is written by Agastya Kaushik, a First-Year Law Student of ILS Law College

Case Details:

Citation: Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

Bench: N.V. Ramana, V. Ramasubramanian

Appellant: Anuradha Bhasin and Mr. Ghulam Nabi Azad

Respondents: Union of India (UOI)

Facts:

The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and decide on their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, and 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 powers vested under Section 144, 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 under the aforesaid restrictions. Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164 of 2019), alleges that he was stopped from traveling to his constituency in Jammu and Kashmir. In this context, he alleges that due to the aforesaid restrictions, he is not able to communicate with the people of his constituency.

Issues Raised:

In line with aforesaid facts and arguments, the following questions of law arise for our consideration:

1. Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC, 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 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, CrPC valid?

5. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 violated due to the restrictions?

Argument by Council

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

The court held that the state had to produce the order placing restrictions before the court. It had cited difficulty in determining the legality of the restriction imposed when the state refused to produce the order before the court. On the obligation of the state to disclose information, especially in the writ petition, the court cited the judgment passed in Ram Jethmalani v. Union of India, that to be Article 32 meaningful, the petitioners should be provided with all the relevant information necessary which is needed to articulate the case, and especially when the state has had information. Article 19 can be interpreted in such a way where right to information is one of the important facets of freedom of speech and expression.

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?

The court held that freedom of expression through the Internet is one of the “integral parts” of Article 19(1)(a). The court has emphasized its earlier judgments in which it has protected new mediums of expression. In Indian Express v. Union of India, that freedom of print medium is a fundamental right under Article 19(1)(a). In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, it was held that it is the right of citizens to exhibit films which are now protected under Article 19(1)(a). The Court in K.S. Puttaswamy held that five sub-components of proportionality must satisfied: (a) legitimate goal (b) the existence of a rational connection (c) necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfill the aim (d) necessary to protect them

(e) provide sufficient safeguards relating to the storing and protection of centrally stored data.

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

The Court said that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for blocking access to information as it blocks access to particular websites on the internet and not the whole of it. The Court also noted that there was no maximum duration period of a suspension order. But considering the principle of proportionality the Court held that indefinite suspension is impermissible. Since there was nothing specified in the Suspension Rules about the maximum duration, the Court asked the Review Committee to determine the duration and ensure its extension to a reasonable period.

4. Whether the imposition of restrictions under Section 144, CrPC valid?

The Court said that Section 144 CrPC is one of the mechanisms that enable the State to maintain public peace by taking preventive measures to handle imminent public menaces or threats. But the Section isn’t absolute rather it provides certain safeguards like prior inquiry before exercising the power and modifying/rescinding the order when the situation so warrants. The Supreme Court vividly discussed various judicial precedents regarding Section 144 of CrPC. In State of Bihar v. Kamla Kant Mishra, the Supreme Court held the latter part of Section 144(6) as unconstitutional, because it didn’t provide constraints on the duration of the order. The Court held that Section 144 of CrPC can be exercised when there exists present danger as well as the apprehension of danger. It can’t be used to suppress legitimate opinions or grievances or exercise any democratic rights. An order passed under Section 144 should state material facts to enable judicial review of the same. The magistrate is duty-bound to apply the principle of proportionality to the restrictions and should balance the rights. Repetitive orders would be an abuse of power.

5. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 violated due to the restrictions?

The petitioners contended that restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. The Court rejected this plea. The Court began by elaborating on freedom of the press and mentioned the case of Channing Arnold v. The Emperor, a Privy Council judgment which for the first time recognized the freedom of the press. Therefore, 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 Court said that the petitioners failed to offer any concrete evidence that the restrictions imposed restricted the freedom of the press like publication of newspapers and the distribution of the same. Since the petitioner failed to produce evidence therefore the Court couldn’t distinguish whether it was a legitimate claim for chilling effect or mere emotive argument for self-fulfilment.

Observation

The most notable point rooted in the Bhasin News agency’s case is the interrelations between the various rights granted by the Constitution and the freedom of the Press in India. The judgment of India's Supreme Court is significant for several reasons. Below are a few of the judicial pronouncements which are most relevant to this study:

Freedom of Press: The Constitution of India, in article 19(1)(a), clearly states that there are particular includes that pertain to the freedom of the press and that are sacrosanct. The Court recognizes the contribution of the press in a democratic setup in which it aims to instigate discourse and hold authorities to account.

It's got a communication: The Supreme Court was of the view that any such restriction on communication must be justified and must be within the limits of necessity and proportionality. In this context, the Court analysed the decision of the Indian State to clamp down on communication in Jammu and Kashmir, and whether the imposition of such severe means of communication was justifiable and proportionate.

In the situation of freedom of expression: The above factors are of critical analysis as the right of the people to seek information pertaining to the freedom of expression that they enjoy is also dealt with by the court as absolute. The Court could not permit the kind of excessive communication strategies that were used in Jammu and Kashmir and emphasized that public order should not prevent the flow of information.

Due Process and Legal Framework: It was stressed that since the government action impinges upon fundamental rights, it must be by the law. The Court criticized the absence of a law-based communication blockade arguing that it violated the right to fair hearing norms.

Review Mechanism: The Court proposed the setting up of a review mechanism which is important in cases that result in the modification of the measures restricting communication, in which the measures would be ruled as justified only during a certain period. This mechanism would create a platform to ventilate the concerns that would be experienced as a result of these restrictions.

In a nutshell, the judgment in Anuradha Bhasin vs Union of India, protected the constitutional rights of the citizens against the encroachments of the state in their rights to free speech and access to information, while defining the framework for institutional review of such encroachments by the state. The case is a milestone in the evolution of the Indian legal framework as it deals with reconciliation between the needs of terrorism and individual rights.

RATIO

The rationale behind the Supreme Court’s judgment in Anuradha Bhasin vs Union of India revolves around ensuring that the fundamental rights of freedom of speech and expression, including press freedom, are not unduly restricted by the state. Here’s a detailed breakdown of the Court’s rationale:

Protection of Fundamental Rights: The court noted that in any country, fundamental rights more especially freedom of speech and of the press as in article 19: 1: a, are of paramount importance, and without them, democracy cannot work. Democratic processes entail the active involvement of the public and the mass media to not only passively relay information but also to keep the authorities in check.

Necessity and Proportionality: The court ascertained the legality of the communication blackout in Jammu and Kashmir by applying the principles of necessity and proportionality. In general, whenever a limit is placed upon fundamental rights, such limitation must satisfy the following:

Necessity: The limit on the right must be necessary in the pursuit of a legitimate interest for instance national security, public safety, or the protection against disorder or crime

Proportionality: The limit on the right must not be excessive about the objective it is intended to achieve in other words it must not extend so far as to be more than what is required for the attainment of the goal.

Review Mechanism: The court observed that there is no clear legal provision regarding any possibility of review of the communication restrictions introduced in Jammu and Kashmir. There was a need for a review.

Analysis and Comments

The Anuradha Bhasin vs Union of India is the focus area from a law student perspective which can be analyzed in a way as to learn how constitutional rights, national security, and judicial review are misplaced. In this case, here is what I have been able to find out in detail and provide analysis:

1. Constitutional Rights and Press Freedom

Analysis: The case is crucial in upholding the constitutional protection of press freedom under Article 19 (1 (a) of the Constitution of India. The Supreme Court held press freedom as an essential right without which the press functions in a democratic society, the role of which is to inform the society and stimulate the public discourse. A particular feature of this case is the stress on the importance of this freedom in respect of the checks and balances in the governance of the country.

Commentary: A law student for instance may cast appreciation on the position of the Court as regards press freedom. The Importance of the press as a medium of information and communication to the public is apparent in this case and shows how such fundamental rights must be safeguarded at all times even when the circumstances are adverse. It also gives a practical understanding of the above factors showing how the constitutional objectives are implemented and how the judiciary is responsible for protecting the citizens from excessive powers of the state.

2. Deriving and Weighing Harm

Analysis: The Court considered the principles of necessity and proportionality in this assessment of the blackout of communication. It undertakes an evaluation of whether the ban was imposed for a legitimate purpose (for instance, national security) and if so, whether was it appropriate for that purpose. The Court observed that the government’s blanket communication restrictions were unreasonable and did not meet the justification standards by the government.

Commentary: Law students will find this case a proper application of these principles, which makes it useful for law students on the practical aspect of jurisprudence. It shows how courts are required to balance competing rights, namely those of an individual and the state, more often than not the security of the nation. Thus, statements on how the Court applies these principles will assist in the understanding of new cases worth fundamental rights versus state interference in the future.

3. Procedural Fairness

Analysis: The Court’s criticism of the lack of procedural fairness in the imposition of the communication blackout highlights the need for adherence to established legal procedures. The absence of a clear legal framework for the blackout was seen as undermining procedural fairness.

Commentary: This aspect of the judgment underscores the importance of procedural due process in the protection of fundamental rights. It is a critical point for law students, as it demonstrates how legal principles must be followed to ensure fair and just outcomes. It also emphasizes the role of procedural safeguards in preventing abuses of power.

4. Impact on Democracy

Analysis: The Court recognized that excessive restrictions on communication can undermine democratic values. The judgment reinforces the idea that a free press is crucial for the functioning of a democracy and that restrictions must not hinder democratic discourse.

Commentary: For law students, this point serves as a reminder of the broader implications of legal decisions. It shows how the protection of individual rights contributes to the overall health of democratic institutions. Understanding this connection helps in appreciating the significance of judicial decisions beyond the immediate legal context.

Conclusion

The Anuradha Bhasin case is a landmark decision that provides valuable insights into the balance between fundamental rights and state interests. It highlights key legal principles such as press freedom, necessity, proportionality, procedural fairness, and democratic values. For law students, analysing this case offers practical knowledge of how constitutional principles are applied, the importance of procedural safeguards, and the role of judicial oversight in maintaining democratic integrity.