Anuradha Bhasin vs Union of India is a landmark judgment which challenged the constitutionality of the internet shutdown and movement restrictions imposed in Jammu and Kashmir following the abrogation of Article 370. It raised significant issues about press freedom, freedom of speech and legality of restrictions under Articles 19 and 21 of the Indian Constitution. Learn about other important Landmark Judgements.

Anuradha Bhasin vs Union of India 2020 Introduction

Anuradha Bhasin vs Union of India is a landmark judgement of the Supreme Court of India that emerged from the abrogation of Article 370 of Indian Constitution which led to prolonged internet shutdowns and movement restrictions in Jammu and Kashmir. The petitioner, a journalist, challenged these curbs and argued they violated fundamental rights under Articles 19 and 21 of the Constitution. The Supreme Court examined the legality and proportionality of such restrictions.

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The case of Anuradha Bhasin v. Union of India centres around the constitutional challenge to the prolonged internet shutdown and restrictions imposed in Jammu & Kashmir following August 5, 2019. The Anuradha Bhasin v Union of India case addressed important questions about the scope of fundamental rights, including freedom of speech, expression and trade over the internet and examines the legality and proportionality of the government’s actions. The following are the brief facts of Anuradha Bhasin vs Union of India -

Anuradha Bhasin vs Union of India Case

Though popularly celebrated as the “Paradise on Earth,” the region of Jammu and Kashmir has long been marred by unrest and violence. Despite its serene landscape dominated by the Himalayas, the ground reality often reflects daily bloodshed and turmoil. In such a contradictory setting, the petitions presented before the Supreme Court highlight two conflicting narratives, leaving the Court with the formidable task of balancing individual liberties against national security concerns. The Court in Anuradha Bhasin vs Union of India explained that it would not engage with the political aspects of the decisions taken but would focus on ensuring that security measures do not disproportionately infringe upon the fundamental rights of citizens, especially the right to life and liberty.

Background of the Security Measures

The main issue in Anuradha Bhasin vs Union of India arose following a Security Advisory issued by the Home Department of the Government of Jammu and Kashmir, urging tourists and Amarnath Yatra pilgrims to cut short their visit and return home due to security concerns. Shortly thereafter, all educational institutions and offices were shut down. On 4th August 2019, communication channels across the valley including mobile networks, internet services and landlines were abruptly suspended and certain areas faced movement restrictions.

Constitutional Changes and Imposition of Section 144 CrPC

On 5th August 2019, the President of India issued Constitutional Order 272, extending all provisions of the Indian Constitution to the State of Jammu and Kashmir, while also amending the application of Article 367 to facilitate these changes. On the same day, the respective District Magistrates, apprehending threats to public peace, imposed restrictions on movement and public gatherings using powers under Section 144 of the Code of Criminal Procedure.

Petition by Anuradha Bhasin

Ms. Anuradha Bhasin, an Executive Editor of the Kashmir Times, filed a writ petition (W.P. (C) No. 1031 of 2019) and asserted that due to the clampdown, the Srinagar edition of her newspaper could not be published or distributed on 5th August 2019, and that she had been unable to publish it at all since 6th August 2019. She argued that the restrictions had severely curtailed the freedom of the press and the movement of journalists. She sought directions from the Court to:

• Quash all orders that had shut down or suspended communication services
• Direct the authorities to restore internet, mobile, and landline services in the region
• Ensure free and safe movement of journalists and media personnel
• Frame guidelines to prevent arbitrary curtailment of press freedom

Petition by Ghulam Nabi Azad

Mr. Ghulam Nabi Azad, a senior political leader, filed another writ petition (W.P. (C) No. 1164 of 2019) and alleged that he was prevented from traveling to his constituency in Jammu and Kashmir, thereby obstructing his ability to communicate with the people he represented. He contended that such restrictions were unjustified and violated his rights. 

On 16th September 2019, the Co-ordinate Bench of the Supreme Court allowed him to visit selected districts namely, Srinagar, Anantnag, Baramulla and Jammu on the condition that he would not engage in any political rallies or activities and his visit would only focus on assessing the impact of the restrictions on daily wage workers.

Judicial Orders and Developments

Both petitions were heard on multiple dates and during the proceedings, it was revealed that the orders imposing the restrictions had not been supplied to the petitioners. The Solicitor General, claimed privilege and declined to furnish copies but offered to present them to the Court. The Court requested that, if copies were not to be shared with the petitioners, an affidavit justifying the claim of privilege be submitted.

Meanwhile, the Union of India informed the Court that some relaxations had been introduced especially in terms of mobile and landline connectivity. The Court emphasised that all forms of communication should be normalized, especially in areas concerning healthcare, subject to national security considerations.

On 24th October 2019, after all pleadings were completed and relevant documents were placed on record, the matter was posted for final hearing starting 5th November 2019. In Anuradha Bhasin vs Union of India, the arguments from both petitioners and intervenors were heard extensively over several dates in November 2019.

Contentions in Anuradha Bhasin vs Union of India

In the Kashmir internet shutdown case, various senior counsels presented important arguments addressing the constitutional validity of the prolonged restrictions. They highlighted issues related to press freedom, fundamental rights under Article 19 and 21, procedural lapses and the necessity of proportionality in imposing such restrictions. The following is the key submissions made by the counsels:

Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No. 1031 of 2019

In Anuradha Bhasin vs Union of India, Ms. Vrinda Grover, who appeared for the petitioner, challenged the internet shutdown on the grounds of press freedom, procedural illegality and disproportionate restrictions.

• Impact on Press Freedom: The petitioner, being the executive editor of a major newspaper, was unable to perform her duties post 5th August 2019 due to press restrictions.
• Internet Shutdown and Media Functioning: It was argued in Anuradha Bhasin vs Union of India that print media operations ceased due to the unavailability of internet services which she asserted are important for modern journalism.
• Violation of Free Speech: The internet curtailment constituted a restriction on the right to free speech.
• Procedure under Suspension Rules: The Suspension Rules, 2017 (notified under the Telegraph Act) prescribe the procedure for restricting internet services and contemplate only temporary measures.
• Improper and Unreasoned Orders: In Anuradha Bhasin vs Union of India it was also contended that the orders passed under the Suspension Rules by the State of Jammu & Kashmir were:
  • Ex facie perverse and lacked application of mind.
  • Non-compliant with procedural requirements.
  • Devoid of reasoning on the necessity of restrictions.
• Public Order vs Law and Order: The restrictions were imposed based on mere apprehension of law and order issues, which is not the same as public order.

Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. (C) No. 1164 of 2019

Mr. Kapil Sibal in Anuradha Bhasin vs Union of India, represented the petitioner and contended that the restrictions lacked legal basis, were procedurally flawed, and failed the test of proportionality and necessity. He stated that:

• Lack of Transparency: The State improperly withheld orders by claiming privilege and produced key documents during argumentation, denying petitioners adequate opportunity to respond.
• Absence of Emergency Grounds: The Union of India had not shown the presence of “internal disturbance” or “external aggression” which are essential conditions for Emergency declaration.
• Improper Use of Section 144, CrPC:

Section 144 is to address specific “law and order” issues, not general concerns. Orders must be directed against identifiable persons or groups, not the general public. Entire state lockdowns cannot be justified without identifying the source of the threat. There was no application of mind evident in these orders.

• Disproportionate Communication Restrictions: In Anuradha Bhasin vs Union of India it was argued that:
  • The necessity to block even landline services was not explained.
  • Blanket bans under Section 5 of the Telegraph Act must comply with Article 19 restrictions.
  • Distinction should have been made between social media/mass communication and general internet access.
  • Less restrictive measures (e.g., social media blocks) were possible, as done in earlier instances in Bihar and J&K.
• Balancing Security and Fundamental Rights: While acknowledging the State’s right to impose restrictions, the counsel argued that such measures must be the least restrictive and allow normal life and commerce to continue.

Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No. 139141 of 2019

Mr. Huzefa Ahmadi in Anuradha Bhasin vs Union of India argued that the imposed restrictions must meet constitutional standards of reasonableness and be based on tangible, objective grounds.

• Test of Proportionality: Restrictions under Article 19(2) must be “reasonable” and pass the proportionality test.
• Objective Basis for Section 144 Orders: The orders under Section 144 of Criminal Procedure Code must rely on objective materials and not mere assumptions.

Mr. Dushyant Dave, Senior Counsel for Intervenor in I.A. No. 139555 of 2019

Mr Dushyant Dave in Anuradha Bhasin vs Union of India cited Israeli Supreme Court’s judgment in Public Committee Against Torture in Israel v. Israel (1999), where the court ruled torture during interrogation as unconstitutional despite national security concerns. Warned against justifying broad restrictions on fundamental rights based on vague national security claims.

• Importance of Article 32: Highlighted the role of Article 32 of Indian Constitution in enforcing fundamental rights and referenced Constituent Assembly Debates to stress its constitutional significance.
• Violation of Telecom Policy and Expression Rights:
  • The State’s actions contravened the National Telecom Policy, 2012.
  • Freedom of speech includes public discourse on critical issues such as the abrogation of Article 370.
• Excessive Duration of Restrictions: Emphasized that the restrictions, although purportedly temporary, had continued for over 100 days, which is constitutionally untenable.

Ms. Meenakshi Arora, Senior Counsel for Intervenor in I.A. No. 140276 of 2019

Ms. Meenakshi Arora in Anuradha Bhasin vs Union of India highlighted the need for a structured constitutional analysis while assessing the legality of restrictions imposed by the State. She relied on a five-part test to evaluate their validity under Article 19 and Article 21:

• Five-Part Test for Constitutionality under Articles 19 & 21:
  1. Backing of a valid ‘law’.
  2. Legitimacy of the State’s purpose.
  3. Rational connection between measure and objective.
  4. Necessity of the measure.
  5. Proportionality of the restriction.
• Emphasis on Contextual Validity: She argued that validity of the orders must be assessed based on prevailing facts and circumstances at the time of issuance.

The following issues were addressed in the case of Anuradha Bhasin vs Union of India -

Transparency in Government Orders

The Supreme Court examined whether the Government is legally justified in withholding the publication of all orders issued under Section 144 of the CrPC and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

Internet as a Fundamental Right

The Court in Anuradha Bhasin vs Union of India analysed whether the freedom of speech and expression and the right to practice any profession or carry on any trade, occupation or business using the Internet are protected under Part III of the Indian Constitution.

Legality of Internet Shutdown

The Supreme Court in Anuradha Bhasin v. Union of India examined another important issue of whether the decision of the Government to suspend internet services in Jammu & Kashmir was constitutionally valid.

Validity of Orders under Section 144

The Apex Court in Anuradha Bhasin vs Union of India analysed whether the restrictions imposed under Section 144 of the Criminal Procedure Code were legally and constitutionally sustainable or not.

Violation of Press Freedom

The Court in Anuradha Bhasin Whether the restrictions imposed, including internet shutdowns and movement curbs, violated the freedom of the press of the petitioner (W.P. (C) No. 1031 of 2019).

Anuradha Bhasin vs Union of India Legal Provisions

Article 19 and Article 21 of Indian Constitution played a significant role in Anuradha Bhasin vs Union of India. The following are the legal analysis of these provisions -

Article 19 of Indian Constitution

Article 19 of Indian Constitution guarantees certain fundamental rights related to freedom of speech and expression, as well as other freedoms essential to a democratic society. These rights are not absolute and can be restricted under Article 19(2) through reasonable restrictions in the interest of the sovereignty, integrity, and security of the state, public order, decency, morality, etc. The petitioners in Anuradha Bhasin vs Union of India contended that internet services are essential for exercising freedom of speech and expression, particularly for the press and digital media.

Article 21 of Indian Constitution

Article 21 under Part III of Indian Constitution states no person can be deprived of life or personal liberty except in accordance with procedure established by law. The petitioners in Anuradha Bhasin v. Union of India argued that access to the internet has become integral to daily life making it intrinsically linked to the right to life and liberty under Article 21 of Constitution.

Anuradha Bhasin vs Union of India Judgment and Impact

On 10th January, 2020, the Supreme Court delivered a landmark judgment Anuradha Bhasin vs Union of India declared that freedom of speech and expression as well as the freedom to practice any profession or engage in trade or business through the Internet are fundamental rights protected under Article 19(1)(a) and Article 19(1)(g) of the Indian Constitution. However, the Court explained that these rights are subject to reasonable restrictions as mentioned in Article 19(2) and Article 19(6) respectively, and must pass the test of proportionality.

The 3-Judge Bench of the Supreme Court comprising Justice N V Ramana, Justice Surya Kant and Justice B R Gavai in Anuradha Bhasin vs Union of India explained that its decision was confined to the use of the internet as a medium for exercising these rights and did not extend to declaring access to the internet as a fundamental right in itself.

In addressing the legality of the internet shutdowns and restrictions in Jammu & Kashmir following the abrogation of Article 370 of Indian Constitution, the Supreme Court Anuradha Bhasin vs Union of India observed:

• Expression through the internet has become essential in modern times, and any restriction on this mode of communication must comply with constitutional safeguards.
• The Internet is an important tool for trade and commerce, especially in the digital age, and thus falls within the ambit of Article 19(1)(g).

The Court analyzed the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, and highlighted that:

• Internet shutdowns can only be imposed in cases of "public emergency" or in the "interest of public safety" as per Section 5(2) of the Telegraph Act.
• The reasons for such shutdowns must be clearly stated including an explanation of why the suspension was "necessary" and "unavoidable".
• Indefinite suspension of internet services is impermissible under the existing legal framework. Any suspension must be temporary and proportionate and must be periodically reviewed.

To address the lack of clarity in the Suspension Rules regarding periodic review, the Supreme Court in Anuradha Bhasin vs Union of India directed that:

• The Review Committee under Rule 2(5) must conduct a review every seven working days to ensure that any continued suspension remains justified.

The Court also mandated that:

• All orders imposing internet shutdowns must be made public to ensure transparency and allow for judicial review.
• The State must consider restoring access to essential websites and services, such as government portals, e-banking, and hospital-related platforms in regions where full restoration of internet services is not feasible.

Finally, the Supreme Court in Anuradha Bhasin vs Union of India directed the Jammu & Kashmir administration to review all ongoing internet shutdown orders within one week, applying the constitutional principles laid down in the judgment. If the government finds it necessary to continue any shutdowns, it must issue fresh orders complying with this judgment.

Conclusion

Anuradha Bhasin vs Union of India the Supreme Court on 10th January, 2020 upheld that access to the internet is a fundamental right and highlighted that restrictions on fundamental rights must be legal, necessary, proportionate and temporary. It ordered the government to publish all restriction orders and review them periodically. The case reinforced the balance between national security and individual liberties.