Wednesday, 2 February 2022

Anuradha Bhasin vs Union Of India

 LANDMARK JUDGEMENT


Anuradha Bhasin vs Union Of India


Citation: AIR 2020 SC 1308

Bench: Hon’ble Justice N. V. Ramana, Justice Subhash Reddy, Justice B. R Gavai

FACTS:

This case arises in the context of the internet shutdown and the restriction of movement in Jammu and Kashmir. the Civil Secretariat, Home Department, Government of Jammu & Kashmir issued a security advice advising them to cut their stay short and make safe preparations to return. Educational institutions and offices were also forced to close until additional directives were issued. Internet, mobile connection, and landline services were all turned off on August 4, 2019 until further notice. On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. On the same day, the District Magistrate issued an order limiting mobility and public gathering, citing a violation of peace and tranquillity under Section 144 of the Criminal Procedure Code. Journalists' freedom of movement was curtailed as a result of this, and this was challenged under Article 19 of the Constitution, which provides freedom of speech and expression as well as the right to carry any message. The petitioner, Anuradha Bhasin, editor of Srinagar Times, argued that the internet is an essential part of the modern-day press and restrictions on internet use affected the freedom of the press and the right to the profession under Article 19.

The validity of the internet shutdown and mobility limitations is being challenged in the Supreme Court under Article 32 of the Constitution in this context.

ISSUES RAISED – 

Issue 1:

Whether the freedom of speech and expression and freedom to practise 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?

Issue 2:

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

Issue 3:

Whether the imposition of restrictions under Section 144, CrPC were valid? Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC?

Issue 4:

Whether the Government's action of prohibiting internet access is valid?

ARGUMENTS – 

Petitioners Arguments

  1. The petitioners claimed that certain trades are totally reliant on the internet. Such an internet-based trade right encourages consumption and the availability of options.

  2. Petitioners further contended the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1) (g), subject to the restrictions provided under Article 19(6).

  3. Furthermore, the limits were considered to be neither fair nor proportionate to the policy's goal. It was claimed that "public order" and "law and order" are not synonymous. Due to a threat to law and order, the limitations were enforced.

  4. However, apart from that, neither of these two expressions was at risk before passing the order. Lastly, it was also submitted that these restrictions were meant to be temporary in nature, but they have been in place for more than 100 days.

  5. Mr. Ghulam Nabi Azad, a member of parliament from Jammu and Kashmir, was the petitioner in another writ case. It was claimed in this petition that the scope of the mobility limitation must be particular; it cannot extend to a full state. Furthermore, all governmental orders must be published and available to the public. The state has to choose with the least restrictive option.

Respondents Arguments

  1. Respondents argued that the restrictions were necessary to combat terrorism in Jammu and Kashmir.

  2. Respondents also claimed that the ordinary free speech criterion could not be applied to the internet because of its immense size, the opportunities for two-way communication through social media participation, and the perils of the dark web.

  3. It was proposed that rather than targeting a few specific websites, the internet as a whole be shut down. Finally, they claimed that the assertions made about the limitations' severity were greatly overstated.

JUDGEMENT – 

The court ruled that the government could not claim an exemption for disclosing any order issued by the court under Section 144 of the Criminal Procedure Code. The court determined that the internet is necessary in today's world, and that freedom of speech and expression, as well as freedom to conduct any profession, occupation, or trade on the internet, are fundamental rights protected by Part III of the Constitution.

Furthermore, the court ruled that the restriction on internet access will only be valid in specific situations and will be repealed if it is not. Because such restrictions infringe on people's fundamental rights, the court ordered that the standard of proportionality be applied to ensure that no violation of natural justice has occurred.

The court did not overturn the restrictions on internet access and citizen movement, but it did broaden the interpretation of freedom of speech and expression by including the right to access the internet, which was an essential part of the Article and could only be restricted in cases of national security.

The ruling did not give immediate relief to the individuals who had been impacted by the orders, but it did establish rules for future suspension orders and their procedures in order to prevent the government from abusing its power. This is an answer to future problems.

CONCLUSION – 

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 . The internet is a valid tool for trade and commerce. The globalisation of Indian advanced information and technology has opened up vast business avenues and transformed India into a global IT hub. There was no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through the internet also fosters consumerism and the availability of choice.

Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).







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