By: KARMAN KAUR,
Amity Law School, Delhi
Citation: 2019 SCC OnLine SC 1725
Bench: N.V. Ramana, R. Subhash Reddy and B.R. Gavai
Petitioners: Anuradha Bhasin , Ghulam Nabi Azad
Respondents: Mr. K.K Venugopal , lead Attorney General for Union of India and Mr. Tushar Mehta, Solicitor General for the state of Jammu and Kashmir.
The Petition was given birth due to a series of events. On August 2, the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and pilgrims to leave Jammu and Kashmir as soon as possible. Thereafter, schools and offices were ordered to remain shut until further notice. On August 4, 2019, mobile phone networks, internet services, and landline connectivity were all shutdown in the area. The District Magistrates under Section 144 of the Code of Criminal Procedure imposed additional restrictions on freedoms of movement and public assembly.
On August 5, 2019; the Indian Government issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which stripped Jammu and Kashmir of its special status which was established in 1954. Thus, the internet ban and restricted movement limited the journalists to travel and publish which violated their fundamental right of freedom of speech and expression. Hence a petition was filed by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition. In Anuradha Bhasin v UOI  it was argued the internet is essential for the modern press and that by shutting it down; they are not able to practice their occupation. She also contended that the government should have considered that the restriction was disproportionate and unreasonable. Further, the restrictions censored the discussion of the passage of the Constitutional Amendment stripping Jammu and Kashmir of special status by the persons living there.
Another petition  was filed by petitioner Mr. Ghulam Nabi Azad, who is a Member of Parliament, argued that restrictions must not be based on mere conjectures. Moreover, the official orders must not be kept secret by the State. The restrictions were imposed by the government on the fear of disruption of law and order, neither of which occurred. Further, the petitioner argued that when the situation arises, the State must choose the least restrictive measures so as to ensure that there is a balance between people’s right to exercise their fundamental right, and safety of the people.
On the other hand, the Solicitor General reiterated the historical necessity argument and noted that a State’s first and foremost duty is to ensure security and protect the citizens’ lives. He also argued that the facts laid by the petitioners were false and exaggerated. He contended that restrictions had been only imposed in particular areas, which were relaxed soon after and no internet connectivity has been restricted. Further, the Solicitor General argued that even before the Constitutional Order was passed, the debate on Kashmir’s special status has always remained via provocative speeches and messages.
Specifically, concerning the communications and internet shutdown, the Solicitor General submitted that the internet was never restricted in the Jammu and Ladakh regions. He added, social media can be used to incite violence by sharing fake messages, pictures, videos etc. Further, he claimed that the “dark web” allowed individuals to purchase weapons and illegal substances easily. Hence, to prevent all of the above, such restrictions were imposed.
In light of above-stated facts and arguments, the following questions of law arose in Court for consideration:
Whether the Government can claim exemption from producing all the orders passed under Section 144, C.r.P.C and other orders under the Suspension Rules?
Whether the 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 under Part III of the Constitution?
Whether the Government’s imposition of restrictions to internet access was valid?
Whether the imposition of restrictions under Section 144, CrPC, were valid?
Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
1.The court directed the respondents to publish all orders under S.144 of Cr.P.C as well as under the Telecom Suspension Rules concerning the restrictions, including the order which were in force which restricted internet activity. Citing the precedent in Ram Jethmalani v. Union of India, the Court explained that the State had an obligation to disclose information in order to satisfy the right to remedy as established in Article 32 of India’s Constitution. Furthermore, Article 19 of India’s Constitution had been interpreted to include the right to information as an important part of the right to freedom of speech and expression. The Court added, “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” It was deemed necessary by the court so that the public could challenge those orders via appropriate forums.
2.The freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the internet is protected by Article 19(1)(a) and Article 19(1)(g) of the constitution and that if, they are restricted, it should be done according to the proportionality test. This declaration would entail that any curtailment of the internet will have to be reasonable and within the limits laid down by Art. 19(2) and 19(6) of the Constitution.
3. The Court held that although the government can rightfully suspend internet access, it needs to do it on a temporary period of time, failing which, the government was asked to review its suspension orders and lift those which were not on a temporary basis. The Court recalled Indian Express v. UOI , wherein Supreme Court ruled that freedom of expression protects the freedom of print medium. Court also held that suspending internet services indefinitely is impermissible. It directed that the review committee must be constituted and meet within 7 days of the previous review and look into compliance with requirements of Section 5(2) of the Telegraph Act as well as following the principles of the proportionality doctrine.
4. The Court held that any restrictions on fundamental rights should be proportional and that the least restrictive measures should be imposed by the State. If such restrictions are accepted, then the government would have a free pass to put an internet ban whenever and however it deems necessary. The Court further held that an alternate remedy should be opted, if available, and only in excruciating and unavoidable circumstances, should these restrictions be imposed. The court held that power under Section 144 of Cr.P.C is remedial as well as preventive and can be exercised when there is both a present danger as well as apprehension of danger. The danger should be in the nature of an “emergency”. Further, Section 144 Cr.P.C cannot be used to suppress expression. Any order passed under Section 144 Cr.P.C should state material facts to enable judicial review. The Court further stressed that principles of proportionality should be used and the least intrusive measure applied. The Court held that there shouldn't be repetitive use of Section 144 Cr.P.C as well as it would amount to abuse of power.
5. The petitioners contend that restriction on freedom of press has led to chilling effects on their rights which are protected by the Constitution. However, the Court mentioned that this principle should be used judicially otherwise it may result as a “self-proclaiming instrument”. The court concluded that although the petitioner was unable to produce enough proof of a direct effect of the restrictions on press, there were certainly some indirect consequences on the press. The court highlighted the importance of freedom of press in a democracy and asked the respondents to respect it at all times.
The judgment passed by the Court in this case, is at the very least, bemusing. In an outline, the Court acknowledged that the freedom of speech and expression and the freedom to practice any profession, or carry on any trade, business or occupation via medium of Internet is a fundamental right under Article 19(1)(a) and Article 19(1)(g) respectively. But the court could not offer relief to the petitioners to quash the order on the ground that no such orders were placed before the court by the government. The Court expressed a sense of disquietude, however, making it mandatory to make all the orders in force, and future orders, a public record.
The bench held: “Orders not in accordance with the law laid down above must be revoked. Further, in future, if there is a necessity to pass such orders, the law laid down herein must be followed.” Nevertheless, the court directed the government to constitute a review committee, including the ones now in force for internet suspension.
Moreover, the court held that prohibiting internet access is valid but there must be presence of “unavoidable circumstances” for such orders to be passed. The power under Section 144 of Cr.P.C can be used on “apprehension of danger” but the danger should be in the nature of emergency. But it cannot suppress the legitimate opinion of the public or cause annoyance or injury to any person lawfully employed. In the last issue, the court does not involve in the matter as petitioner had resumed the publication. But, it said that as a responsible government freedom of press should be taken care of. The bench also enumerated the conditions governing the exercise of power under Section 144 Cr.P.C.
An order under Section 144 Cr.P.C, the bench held, should state the material facts to enable judicial review of the same. “The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order”, the bench held.
The bench listed a number of conditions governing the exercise of power by a Magistrate under Section 144 Cr.P.C. Although Section 144 Cr.P.C itself foretells all the conditions like recording of the material facts before issuing any directions under it, the fact that the Supreme Court had to acquaint the authorities of their responsibilities shows that the matter was handled and that the non-observance of these conditions by the court is a flouting contravention of the provisions.
The Court also said that the test of proportionality should be satisfied so that there isn’t any violation of natural justice. The Court held that it is the duty of the Magistrate to balance the restrictions and rights on the basis of test of proportionality, Hence, repetitive orders under Section 144 Cr.P.C would be an abuse of power. The bench was categorical that any such order that is disproportionate should be amenable to judicial inquiry. Thus a relief has been provided for future legal challenges, if an arbitrary or misuse of powers set by the court.
Kapil Sibal, counsel for petitioners stated that it can only be hoped that the government will deter the government from imposing such restrictions again in the future. However, one fundamental achievement from this judgment was that freedom of speech and expression via the internet is considered one of the fundamental rights. The Internet has become a necessary tool for comprehensive activities all over the world, without which humans will succumb into a primitive world, which does not exist anymore. The judgment is a pyrrhic victory for the people of Jammu and Kashmir which has paved its way for more legal battles.
 W.P. (C) No. 1031 of 2019
 W.P. (C) No. 1164 of 2019
 (2011) 8 SCC 1
 (1985) 1 SCC 641