In this case, the legality of the internet shut down for an unspecified time, and restriction on movement by a magistrate under section 144 of Cr.P.C was challenged. This petition was moved by Anuradha Bhasin resident of Jammu and Kashmir during the time when restrictions were imposed after the Indian constitution came into force in J&K on 5 August 2019.
Supreme court bench of N.V Ramana and V. Ramasubramanian heard both the civil petitions, petition no 1031 and 1164 of 2019 one filed by Anuradha Bhasin another by Rajya sabha Member Gulab Nabi Azad.
After listening to the arguments court held that the internet shutdown in UT of Jammu and Kashmir cannot be kept for an indefinite time. Court ordered authorities to review it with passing time. Another major finding of the case was that repetitive orders passed under section 144 of CrPC would be an abuse of power.
Petitions by Anuradha Bhasin and Ghulam Nabi Azad were filed challenging the restrictions imposed and orders passed in J&K after and on 5 August 2019.
Various orders were passed by the authorities stopping Amarnath yatra, advising tourists to leave the state, schools and colleges were shut down, internet services, mobile networks, even landline were discontinued in J&K mostly in Kashmir valley.
Aggrieved by the above restrictions petitioners Anuradha Bhasin and Ghulam Nabi Azad approached the Supreme court for issuance of writs and quashing orders, directions, and circulars passed by the central governments and other authorities.
Contentions of the Petitioners and Interveners.
Ms. Grover on behalf of Anuradha Bhasin contended that the petitioner is the editor of one of the major newspapers, was not able to work after 5 August. Anuradha Bhasin contented that the shutdown of the internet had halted print media which plays an important part in the modern press.
Petitioner Anuradha Bhasin submitted curtailment of the internet is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality. He further stated that the state had not applied mind while passing orders under suspension rules.
Learned counsel submitted that the orders were not in compliance with the procedure prescribed under the Suspension Rules. Further, the orders did not provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules.
Mr. Kapil Sibal for Gulab Nabi Azad submitted that privilege claimed by the state for not putting out orders for public cannot be granted.
Petitioner submitted that the emergency by the Union of India can be declared only in certain limited situations. Neither any internal disturbance nor any external aggression has been shown in the present case for the imposition of restrictions that are akin to the declaration of Emergency.
Restrictions imposed by magistrates under sec. 144 of CrPC can not be imposed on the public generally and must be specifically against the people or the group which is apprehended to disturb the peace.
He further submitted that internet restrictions imposed should follow sec.5 of Telegraphy Act 1885 and Article 19 of the constitution.
He said there can be restrictions on the internet, but a complete ban on internet use cannot be permitted. The least restrictive order should be imposed keeping the security of the state in mind.
Lastly, the learned senior counsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter.
Contentions raised by Union and Government of J&K
The learned Attorney General submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account.
The learned Solicitor General Tushar Mehta submitted that there were enough facts in the knowledge of the Magistrate to pass the orders under Section 144, Cr.P.C.
There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution, and they were aware of the situation on the ground. Provocative speeches and messages were being transmitted. This information is all available in the public domain.
He further submitted that when there are no allegations regarding malafide against the officer. The court does not sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C. and has limited jurisdiction to interfere.
Issues on which court has to decide
- Whether the Government can claim exemption from producing all the orders passed under Section 144 Cr.P.C. and other orders under the Suspension Rules.
- Whether the freedom of speech and expression or to carry on any occupation, trade, or business over the internet is part of the fundamental right under part 3 of the constitution.
- Whether the government action of prohibiting the internet was valid or not.
- Whether the freedom of the press was violated due to the move.
- Whether restrictions under sec. 144 were valid.
Judgement of case Anuradha Bhasin vs Union of India
Judgement of the case was written by N.V Ramana.
The court directed the government to publish all the suspension orders related to the internet and the order passed under sec 144, to enable the persons to challenge it before the high court.
Freedom of speech and expression and freedom to practice any profession or to carry on any trade over the internet is constitutionally protected right under Article 19(1)a and 19(1)g. The restrictions on the rights should be according to Articles 19(2) and 19(6) of the constitution and inclusive of the test of proportionality.
Any order suspending internet under suspension rules should be temporary and the order should adhere to the test of proportionality. Any order suspending the internet is subjected to judicial review.
It was held “The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”
It was said that the power given under section 144 is remedial as well as preventive, it is exercisable not only where there exists danger but also where there is an apprehension of danger.
The danger should be in the form of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
Power under sec 144 cannot be used to supress legitimate expression of opinion or grievance or exercise of any democratic right. Order passed under this section is also subjected to judicial review.
It was held that while passing order the magistrate should act bonafide and should pass order keeping in mind the material facts. A magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality.
Test of proportionality
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable mean of furthering this goal (suitability or rational connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the right−holder (balancing stage).
Of course, while undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible.