Anuradha Bhasin v. UOI [2020 SCC OnLine SC 25]

Internet services are protected under Article 19 (1) (g) of the Indian Constitution. However, they are also subjected to the provisions of Article 19 (6).

Bench –  N.V. Ramana, Subhash Reddy and B.R Gavai.

Facts – This case encases the condition of Jammu and Kashmir’s internet shutdown, curfews and movement restrictions. Before the Constitutional Amendment weakening the absoluteness of Article 370 and reorganising Jammu and Kashmir into Union Territory was approved by Parliament in 2019, internet connections in Jammu and Kashmir were prohibited. The petitioner, Anuradha Bhasin, who was the editor of a newspaper line called Srinagar Times, stated that the internet is an important aspect of today’s media, and that limits on internet use harmed press freedom and the right to do one’s profession enshrined as under Article 19. Hence a petition was filed in the court of law to resolve these issues.

Issues –

  • Whether the State authorities could seek an exclusion from having to produce all orders issued under section 144 of CrPC and suspension rules or not?
  • Whether freedom of practising any profession or carrying on any trade, occupation, or business on the internet, is included as a fundamental right enshrined under Part III or not?
  • Whether the decision of the State authorities regarding the restriction over internet access is legal or not?
  • Is it legal to impose limits under section 144 of the CrPC?

Judgment – in this case the Court ruled that the State Authorities shall be ordered to disclose all current as well as future decisions as per Section 144 of CrPC which relates to suspension of telecom services and internet facilities so as to bring in the possibility of challenging them in Court by the aggrieved parties.

The court further ruled that Article 19(1) sub-clause (a) and (g) of the Constitution safeguard freedom of speech and expression, as well as freedom to exercise any profession or conduct any trade, business, or occupation over the internet. Limitation of such fundamental rights shall be in accordance with Article 19(2) and (6), including the proportionality test.

It was decided by the court that under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, an injunction blocking internet services indefinitely was not authorised. The suspension could only be used for a short period of time. Any injunction suspending internet access given under the suspension rules must follow the proportionality rule and shall not last longer than is required. According to the suspension regulations, any decree blocking the internet was susceptible to judicial review depending on the conditions laid out. There is no provision in the current suspension rules for a periodic review or a time restriction for an injunction imposed under the rules. The court ordered that until and unless the lacuna is taken care of, a review committee shall be established under Rule 2 (5) of suspension rules which shall undertake a periodic review within the span of 7 working days of preview as per Rule 2 (6) of suspension rules. A review of all the decrees regarding the suspension of internet services by State was directed by the court.

The Court ruled that any order that does not follow the law which has been outlined above must be annulled and if a need arises in future to issue any such order, the law outlined above must be followed. Furthermore, the State Authorities are required to permit government websites, localised e-Bank facilities, hospitals and other essential services in areas where the internet facilities are unlikely to be restored soon.

The court held that the powers enshrined under Section 144 of CrPC, which stands as both remedial and preventive, must be used only in a situation of immediate and current risk as well as in a situation of a reasonable apprehension of such risk. However the risk in question should be eminent and for preventing obstruction, annoyance or injury to an individual who is lawfully employed.

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