Anuradha Bhasin v. Union of India & Ors
(2020) 3 SCC 637
In the Supreme Court of India
WP(C) 1031, 1164/2019
Before Justice N.V. Ramana, Justice R. Subhash Reddy, and Justice B.R. Gavai
Decided on January 10, 2020

Relevancy of the Case: Constitutional validity of Internet shutdowns and procedural safeguards

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 69A)
• The Telegraph Act, 1885 (Section 5(2), 7)
• The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 (Rule 2)
• The Code of Criminal Procedure, 1973 (Section 144)

Relevant Facts of the Case

• On August 04, 2019, the administration shut down internet services, mobile networks, and landline connectivity in Jammu & Kashmir (J&K). Also, there were restrictions on movement in some areas.
• On August 05, 2019, the President issued a constitutional order modifying the interpretation of Article 367 in its application to J&K.
• Fearing violence and unrest, the District Magistrates imposed restrictions on public movement and gatherings under Section 144 of the Code of Criminal Procedure, 1973.
• In WP(C) 1031/2019, the petitioner claims that these restrictions limited the journalists’ movements. Between 5th and 11th August, it was not possible to distribute the Srinagar Edition of Kashmir Times.
• In WP(C) 1164/2019, the petitioner (Gulam Nabi Azad) alleges that he was stopped from travelling to his constituency in J&K. Further, he cannot communicate with the people of his constituency due to suspension of communication services.

Prominent Arguments by the Advocates

In WP(C) 1031/2019:

• The petitioner’s counsel submitted that the internet restrictions restrict free speech. Such restrictions must stand the test of reasonable and proportionality.
• The suspension orders are based on an apprehension of danger. When the concerned authority passed the suspension orders, the situation did not want it.
• Further, the orders do not explain the necessity of restrictions, as required under the Temporary Suspension Rules, 2017.

In WP(C) 1164/2019:

• The petitioner’s counsel submitted that the State must produce the impugned orders before the court. These orders cannot be the subject or privilege.
• The Union can declare an emergency only in limited situations. In the present situation, neither internal disturbance nor external aggression justified implementing limitations equivalent to an Emergency Declaration.
• A District Magistrate cannot pass a Section 144 order against the public. The State must identify the persons causing the problem. Such orders should not bring the entire state to a standstill.
• The State should draw a line while restricting social media and general Internet. It should pass the ‘least restrictive measures’, ensuring people can continue their lives.

Union of India:

• The Solicitor General submitted that the historical background of J&K necessitated the required measures. Physical and digital cross-border terrorism is common in the state.
• The petitioners’ submission on the restriction of public movement is incorrect. No restrictions were placed on individual movement. While the local administration had closed schools earlier, they have now reopened.
• Lastly, the court does not sit in appeal for Section 144 orders. It has limited jurisdiction to interfere, mainly when there are no allegations of mala fide and national security is involved.

Opinion of the Bench

• Right to information is a facet of Article 19. Further, the free flow of information is necessary for a democracy. Therefore, the State must produce the orders, not merely samples.
• Freedom of speech, expression, trade, and business over the Internet is a part of fundamental rights. Any order curtailing the same must be tested against proportionality.
• The powers under the Temporary Suspension Rules are temporary. Suspensions should be necessary and unavoidable. However, extending a suspension indefinitely is impermissible.
• There is no provision in the Temporary Suspension Rules for periodic reviews. A procedural safeguard is needed here.
• The powers under Section 144 of the Code of Criminal Procedure, 1973 are also exercisable when there is an apprehension of danger. However, these powers cannot suppress the legitimate expression of opinion and grievance or exercise democratic rights.
• An order under Section 144 should specify the material facts and reasons to enable judicial review. Repeated use of Section 144 can amount to an abuse of power.

Final Decision

• The State must publish all orders under Section 144, including those currently in force.
• Since the Temporary Suspension Rules do not provide for a periodic review, the Review Committee under Rule 2(5) should conduct a periodic review every week.
• The State should consider allowing government websites, limited e-banking facilities, hospital services, and other essential services.
• The court disposed of the writ petitions and all pending applications.

Mehula Liza Pallathu, an undergraduate student at the National University of Advanced Legal Studies, Kochi, prepared this case summary during her internship with The Cyber Blog India in May/June 2021.