ANURADHA BHASIN V. UNION OF INDIA, 2020

Case Number: Writ petition (civil) No. 1031/2019

Division Bench: Justice N.V. Ramana, Justice V. Ramasubramanian

Provisions Applied:
Article 19(1)(a), Article 19(1)(g), section 144 of CrPC

FACTS

Jammu and Kashmir is an Indian territory, which borders Pakistan that has been a subject of dispute between both the countries. Under the Article 370 of the Constitution of India, the state of Jammu and Kashmir enjoyed a special kind of status as it has its own constitution and people from other states were not allowed purchase any property there. On August 5, 2019, the Government of India issued Constitution (Application to Jammu and Kashmir) Order, 2019, which took all the special status from the state of J & K and stated that the state will follow all the provisions of the Constitution of India.

Stopping the breach of peace and tranquility, the District Magistrates issued the orders of suspending the Internet connections and freedom of movement. On August 4 2019, all the mobile networks and the Internet services were shutdown in the region as to maintain peace in the state. These movement restrictions limited the ability of journalists to travel and publish and hence they challenged in court for their violation of Article 19 of Indian Constitution. Anuradha Bhasin, who is the editor and publisher of the newspaper Kashmir Times, could not publish the newspaper due to these restrictions. Writ petitions were filed under the Article 32 for the removal of the restrictions on Internet access and network connectivity.

ISSUES INVOLVED

• 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?
• Whether the Government’s action of prohibiting internet access is valid?
• Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
• Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

OBSERVATIONS

The Supreme Court stated that its objective is to maintain a balance between the liberty and security affairs so that the Right to Life is secured and enjoyed in the best way possible. The court mentioned that online expression has become one of the major means of information circulation and it was essential to the enjoyment of freedom of speech and expression as guaranteed by Article 19(1)(a). It was also mentioned that Internet plays an important role in trade and commerce.

Therefore, the stoppage of Internet also affected freedom of Trade and commerce as guaranteed by Article 19(1)(g).

The court rejected the petitioner’s argument that the restrictions of movement and communication violated the freedom of press and journalists ability to perform the professional duties. The Court found that the Petitioners failed to produce any kind of evidence that the restrictions limited the publishing of newspapers in Jammu and Kashmir or to challenge the State’s argument that newspapers were published and distributed during the communication and movement lockdown.

HELD:

Right to Internet forms part of freedom of speech and expression under Article 19(1)(a) and freedom to practice any profession, carry a business, trade or occupation under Article 19(1)(g).

Since right to Internet is part of Article 19, it is not absolute. However, it may be denied on the grounds mentioned under Article 19(2)&(6). Since no review mechanism is provided in the Suspension Rules, 2017, Competent Authority will review the matter within 7 days. Production of Orders passed under Section 144, CrPC is material in light of right to information as interpreted by the Supreme Court and also because judicial review will be possible then only.

Author: Ananya Pandey,
Law student 4th b.a.llb marathwada mitra mandal's shankarrao chavan law college