Anuradha Bhasin v. Union of India [2020 3 SCC 637]


Background:

The Writ petition was challenged under Article 32 of the Constitution. On 5th August 2019, Constitutional Order 272 was issued by the President of India. It applies all provisions of the Indian Constitution in the State of Jammu and Kashmir with Article 367. The executive editor of Kashmir Times, Anuradha Basin, filed a writ petition against freedom of speech and expression under Article 19 of the Constitution, and Gulam Nabi Azad claimed a similar petition. Thus, the issue raised by these petitions were challenged in the Court of law that states the restriction was imposed on the freedom of speech and expression that includes the right to the internet that caused India’s national security.

The given case precisely stands in relation to Article 19(1)(a) and Article 19(1)(g) of the Constitution. It also restricted under section 144 of CrPc and made some temporary suspension on telecom services for public safety. Thus, procedures were made for restricting the information on the online platform.

Facts of the Case:

A writ petition under Article 32 of the Indian Constitution was filed against the order restricting the movement and public gathering. It also appends breach of peace and tranquillity under section 144 of CrPc, and it was also challenged for the curb of media freedom in the state.

Anuradha Bhasin filed the petition; she was the executive editor of Kashmir Times. She argued that restriction on internet surfing would be against the right of a citizen. The journalist points that the internet is the only media that people would be aware of the news since the newspaper was not published from 06/08/2019. She argued that Government should have a valid reason for restricting such orders, and the Government should find a way for national security rather than making restriction on internet surfing.

A similar writ petition that was filed by Mr Ghulam Nabi Azad, Member of Parliament, claimed that the state could not make such orders by restricting the right to citizen. He states that a national emergency can be made, but the disruption is not been harmed by internal or external, but such restriction would be against citizens. In his contention, he claimed that restriction should be imposed on those people who harmonize peace and tranquillity. The Government should take restrictive measures, but it should not harm the fundamental rights of citizens. Thus, such restriction doesn’t only harm freedom of speech and expression but also harms freedom to carry any trade, profession or occupation.

On the other hand, the respondent, i.e. K.K Venugopal, Attorney General and Tushar Mehta, Solicitor General, claimed that in the state of Jammu and Kashmir, national security should be taken into consideration. In the contention, they mention in the Court of law that such order was taken to protect the citizens and to maintain peace and harmony in the state.

The Magistrate content that there is a relaxation on threat perception and all channels of media are working, but section 144 of CrPc can be preventive for the safety of the citizens. He said that internet surfing was not restricted on the borders of Jammu and Leh, but the intention of restricting the internet in some regions was made for the purpose of national security. He assured that the order passed by the Court of law was made according to the procedure in Suspension Rules and it should be reviewed.

Issue Raised:

1. Whether the Freedom of Speech and Expression would harm the freedom to practise any profession, trade, occupation or business, the internet shutdown would come under fundamental rights under Part III of the Constitution?

2. Whether the restrictions violated under the freedom of the press of the petitioner in W.P. © No. 1031 of 2019?

3. Whether the Government actions prohibiting internet access are valid?

4. Whether the restrictions imposed under section 144 of CrpPc is valid, and Government can claim exemption from producing all the orders passed under section 144 of CrPc?

Analysis:

The petitioner argued that Government should have a valid reason for restricting such orders, and the Government should find a way for national security rather than making restriction on internet surfing. The orders of the restrictive movement were passed under section 144 of CrPc, but no existence of law was accomplished, such restriction cannot be imposed, but due to some people, the peace and harmony of the state are restricted.

However, the respondent’s contents that such orders were passed for national security. He states that suspending internet services does not relate to the shutdown in Kashmir. The only relief granted was to give direction to the state to review all orders that suspend internet services.

Held:

The Supreme Court held in the given matter that:

1. The Government can impose reasonable restriction on fundamental rights under part III of the Constitution. Thus, the reasonable restriction is limited to the interest such as sovereignty, integrity, friendly relations with the states, public order, decency or morality or contempt of Court, defamation or incitement to an offence, although it also includes complete restriction however only in appropriate cases.

2. The restriction on suspending internet services would be a reasonable restriction.

3. The freedom of the press by the petitioner does not relate to any violation.

4. Thus, section 144 of CrPc can be applied in case of an emergency but not for the prevention of instruction or injury to any lawfully employ.

5. Only the magistrate and the state have the right to decide whether there is a likelihood of a threat to public peace.

Observation:

The given matter before the Court was related to the prevention of national security of India and safeguard citizens of India. As it involves the basic fundamental rights of the citizen, so it was necessary to take preventive measures.

The Court held that the Government could not contain any exception for providing any order before the Court that was passed under section 144 of CrPc. Thus, the internet is a part of an essential ingredient in the 21st century and thereby, freedom of speech and expression would relate to the part of Fundamental Right under Part III of the Constitution.

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