Case Analysis: AnuradhaBhasin v. Union of India and Ors.[1] AND Gulam Nabi Azad v. Union of India and Anr.[2] (Decided together on 10.01.2020)[3]
Bench: N.V. Ramana J., R. Suhash Reddy J. and B. R. Gavai J.
Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security?
PROLOGUE: The jurisprudence of fundamental freedom of human beings is a dynamic horse. What seem luxury in a given space time may become a basic necessity in another. The economic and social development are the reins of this horse and thus defines its direction. The judges are the charioteer. In Indian context, the courts’ power of judicial review helps it in enlarging the scope of the fundamental rights under Part III of Constitution of India. Although, the UN recognized the Right to Internet as a basic human right in 2016, in India the first step was made in 2019 by the Kerela High Court[4], which recognized internet as a basic necessity. The Kerela High Court held that prohibition on use of mobile phones in girls’ hostel is an unreasonable infringement upon Article 21 vide Right to Privacy and which shall also include right to access internet.[5] Later, the application of Section 144 Cr.P.C.[6] by the District Magistrate in the territory of Jammu & Kashmir, gave SC an opportunity to redefine and refurbish the scope of Article 19(1)(a)[7] and recognize Internet as a basic human right. Justice N.V. Ramana quoted from Charles Dicken, A Tale of two Cities – “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age offoolishness, and (…) in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil.”
This case analysis is of the decision given by the Supreme Court of India on 10TH January 2020, while deciding on the legality of restriction imposed under Section 144 of Cr.P.C. The author recommends separate reading of decision given by the High Court of Kerela in 2019, delivered by Justice P.V. Asha.
- ARGUMENTS BY THE PARTIES
On behalf of Petitioners – By Ms. Vrinda Groverand By Mr. Kapil Sibal
It was alleged that the petitioner, being an editor of print media was not able to function due to various restriction imposed from 05,08,2019 Print media came to a standstill due to no availability of internet services, as internet service is the basic feature of present modern press, and internet is vehicle through which press may articulate the opinion and Curtailment of the internet, the restriction curtailing the free speech should be tested on the basis of doctrine of proportionality. Further the suspension order were not under the compliance of rules and even not as per the procedure and as far as no proper reasoning were given to impose the restriction. The counsel submits that order under 144 of Cr.P.C. restricts the movement and such orders are made when the execution of law and order is in issue or to maintain peace. And even 144 cannot be applied to whole public rather it should be applied to particular area or public disturbing the peace of society.
By Ms. Meenakshi Arora and Mr. Sanjay Hedge, Senior Counsels for Petitioners
Learned senior counsel submitted that Articles 19 and 21 of the Constitution the action of state must determine five features 1) legitimacy, 2) backing of law, 3) rationality, 4) Necessity to impose action, if all these four principle established than test of proportionality implies and even counsel pointed that these restrictions engender fear in the mind of people.Whereas, Mr. Sanjay Hedge, Senior on behalf of the Petitioner that he and his family were law abiding citizens, yet they suffer the effects and bring fear in mind due to the restrictions. Citing the House of Lords judgment of Liversidge v. Anderson[8], the learned senior counsel submitted that it was the dissent by Lord Atkin, upholding the fundamental rights of the citizens of the United Kingdom, which is now the law of the land.
- On behalf of Respondent – By K.K. Venugopal, Learned Attorney General of India and By Mr. Tushar Mehta, Solicitor General for the state of Jammu and Kashmir
The learned Attorney General supported the submissions made by the Solicitor General. He submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account.[9]
According to the learned Attorney General, that considering two things in mind about the fact relating to cross border terrorism and internal militancy, it would be foolish action to have not taken any preventive measures in the circumstances. There was a necessity of the order under Section 144, Cr.P.C. are apparent from the background facts and circumstances, there was a possibility of huge violence or riots if the government does not take such measures. The past conditions of Jammu and Kashmir should be looked upon to understand the measures taken by the state. As state being the victim of physical as well as Digital terrorism. The learned Solicitor General submitted that the Petitioners were incorrect to allege that public movement were restricted. In fact, individual movement had never been restricted by the authorities. Additionally, while schools were closed initially, and reopen soon after that looking on the facts, circumstances and requirements of an area, restrictions were gradually being relaxed. As per the orders passed by the Magistrates under Section 144, Cr.P.C. in their respective areas, the learned Solicitor General submitted that even they were placed to analyse the ground situation to take appropriate decisions accordingly. Currently, there is nearly a hundred percent relaxation of restrictions. And even restriction was never imposed on Ladakh region. This put light on the fact that there was proper application of mind while passing the orders.Further, the learned Solicitor General mentioned various figures to indicate ordinary lives of people in the state. Lastly, the learned Solicitor General submitted that the orders were as per the proper compliance of the procedure in the Suspension Rules, and are being reviewed timely and strictly in terms of the same.
ISSUES
- Whether freedom of speech and freedom to practice trade through the internet is included in Part III of the Constitution that is Fundamental Rights?
- Whether the government can impose restrictions on the access of the internet?
- Whether the imposition of such restrictions valid under S.144 Cr.P.C?
- HOLDINGS
- Fundamental Rights and reasonable restrictions on them under Part III
Right to access and right to disseminate information is included in Article 19(1)(a). Expression through and oninternet has gained relevance in the present and is one of the major means of disseminating information. Ergo, the freedom of speech and expression through the internet inherent underArticle 19(1)(a) and thusthe restriction on it must adhere to Article 19 (2) of the constitution.[10]
In the present society enormous trade is carried out on internet. There are certain trades which are totally dependent on internet. Since, Freedom of trade and commerce is a fundamental right under Article 19(1)(g) – trade on internet is also included in it, and restriction on it shall be imposed in accordance with Article 19(6).[11]
In regards to the restriction imposed by the state on these rights, the court noted that the restrictions were valid under Article 19(2) and Article 19(6). While holding so the court noted, modern terrorism relies heavily on the internet.
- Internet Shutdown
The court noted that “procedural justice cannot be sacrificed on the altar of substantive justice”[12]. Court defined the scope of Section 69A[13] of Information Technology Act, 2000and stated that it is confined in rigid boundaries. Under this section access to particular websites can be restricted not the entire access to internet. Thus, this section cannot be resorted to by the government to impose blanket restrictions. The Suspension Rules under IT Act in this regards have aperture, which the legislature needs to fill. The restrictions observed under the Suspension Rules are temporary, thus they must not be allowed to extend beyond a certain time period.
The court in its concluding remark noted complete blanket suspension of internet service, is a drastic measure. The state must consider applying it if it’s “necessary” and “unavoidable”.
- Restrictions under Section 144 of Cr.P.C.
“As emergency does not shield the Actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”[14]
While petitioners argued that no circumstances warranted imposition of Section 144, the counsel of respondent noted that the volatile and violent history, nefarious secessionist activities,immense data available with public about external aggressions, and inciting statements given by political leaders, created a warranted a situation for passing of orders under Section 144.
- OBITER DICTA
- Fundamental rights and reasonable restrictions
- The counsels from neither side argued for declaring the right to internet as a fundamental right ergo the court could not express any view on the same. The court confined itself to declaring that Right to freedom of speech and expression under Article 19(1)(a), and the Right to carry on any trade or business under 19(1)(g) practiced through or on the internet is protected, as the internet is a medium to exercise the core rights.
- The court then proceeded with the nature of restrictions that could be imposed on aforesaid lines which was bare interpretation of Article 19(2) and Article 19(6). Here, the court quoted several cases[15] wherein it has allowed complete prohibition on fundamental rights were allowed, provided that the situation warranted it and the prohibition/restriction was in consonance with the provisions of Article 19(2) and 19(6). The analysis of the cases aforementioned pointedto three conclusionswhich emerge concerning Article 19(2) of the Constitution.
- Restrictions may be imposed on the exercise of freedom of speech and expression
- The restrictions cannot put an excessive burden on the right of speech and if complete prohibition is imposed by the government, they have to justify such impositions
- It is a question of fact, whether restriction led to a blanket prohibition on exercise of 19(1)(a), which the Courtmay determine based of circumstances in each case.
Thereby, in this case, after paying due regards to circumstances, the court noted that the imposition of restriction by the state was valid. The court resorted to the principles of balancing and proportionality while referring to certain cases[16] where it has been applied with respect to Fundamental rights and DPSP.The judgement spread light on how internet is used as a form of information warfare and propagates terrorism.[17]
- On internet shutdown
The court emphasized on the need of procedural justice that may inflict restrictions on fundamental rights.[18] The procedural mechanism observed for restrictions on the Internet, is twin fold:
First is contractual between the government and the internet service provider
Second is statutory under various laws[19] that allow such restrictions
Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. The court noted that Section 69A does not warrants blanket restriction and further the suspension rules are ambiguous and vague in terms such as “temporary”. Thus, the court directed that the apertures in legislation must be fulfilled.
- Restriction under Section 144 Criminal Procedure Code.
Section 144 given immense powers to the district magistrate to control any emergent situation in society. The court went into reading the cases wherein the scope and the boundaries of Section 144 were explained.[20] It finally noted that[21] –
- The power under Section 144 is remedial and preventive, it may be exercised in case of present danger as well as in cases of‘apprehension’ of danger. However, the danger apprehended should be of emergent nature and shall be directed towards preventing annoyance, injury and obstruction, to or of any person lawfully doing his duties.
- The power under Section 144 cannot be used to suppress the ‘legitimate’ exercise of freedom of speech and expression or for that matter any democratic rights.
- Any order under Section 144, shall mention the material facts so the process of judicial review may be applied. The power shall not be exercised arbitrarily rather in a bona fide and reasonable manner. The order should be indicative of application of mind. This will enable judicial scrutiny.
- The Magistrate while passing order is duty bound to strike a balance between the restrictions and the rights based on the doctrine of proportionality and then apply the minimum restrictions possible.
- Finally repetitive orders under this section constitute an abuse of power if not warranted by justified reasons.
- COMMENTS
The judgement delivered by the court in the instant case touched various avenues of Constitution. The power of State under various legislations to impose restrictions on the fundamental rights of people was examined extensively. While doing so the court read into Article 19(1)(a) and Article 19(1)(g) and stated that “Right to access internet” is necessary to exercise these rights. However, since no counsel approached the court with an appeal to make it a fundamental right in itself, the court had to restrict itself till here. However, court duly analyzed the procedural grounds on which the blanket restriction on internet was placed, through which it ruled that suspending the internet indefinitely without any specified period is not allowed. The court contrastingly also noted the menaces of the internet and how it propagates terrorism. Yet it retreated that restrictions should be proportional to threat.
Apart from Right to Internet access, the case significantly discussed the power of state under Section 144 of Cr. P. C. and noted that such power being remedial and preventive, is exercisable in cases of both present and apprehended danger. However, the danger apprehended must be imminent and emergent.
The court gave a cutting remark – “The power under Section 144 cannot suppress legitimate expression of opinion or exercise of any democratic and fundamental right.”
Further, repetitive order under Section 144 would amount to abuse of power. In the entire judgement the court emphasized on “Doctrine of Proportionality and Balance” whereby any restriction on Fundamental Right (along with being legally valid) must be proportional to the apprehensions and threats. Section 144 is intended to meet an emergency and the same cannot be permanent in character. Repetitive order extending the duration would clearly tantamount to abuse of power. If a situation is so emergent that it warrants repetitive orders, then step have to be taken under other appropriate provision of law, as Section 107.
Conclusively, the judgement is a form of guideline for the government in the matters wherein it exercises its power to limit fundamental rights in any form in a democratic system. This judgment will be recalled as a precedent while interpreting the issue of right to internet and appropriate use of power of 144 and would become an umbrella for the society and protect their rights.
[1]WRIT PETITION (CIVIL) No. 1031 of 2019.
[2]WRIT PETITION (CIVIL) No. 1164 of 2019.
[3]SC decision in the case Anuradha Bhasin v Union of India and Ors. AND Gulam Nabi Azad v. Union of India and Anr. (Decided together on 10.01.2020) Judgement available at –
https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf Last Accessed on 17-03-2020 at 20:03 IST.
[4]Vide Faheema Shirin v. State of kerela WP(C). NO. 19716 OF 2019.
[5]Case Analysis of Kerela High Court Decision by Global Freedom of Expression, Columbia University. (Available at https://globalfreedomofexpression.columbia.edu/cases/shirin-r-k-v-state-of-kerala/ ) (Accessed on 26TH Feb., 2020).
[6] Power to issue order in urgent cases of nuisance of apprehended danger.
[7] Right to freedom of speech and expression.
[8] (1941) 3 All ER 338
[9] National Investigation Agency v Zahoor Ahmad Shah Watali, 2019 (5) SCC 1. In this case SC took cognizance of the problem of terrorism in the State before.
[10]Supranote 5, Para 26.
[11]Supranote 5, Para 27.
[12]Id.
[13] Power to issue directions for blocking for public access of any information through any computer resource.
[14]Supra note 5, Opening remark of Para 103.
[15]Madhya Bharat Cotton Association Ltd. v Union of India, AIR 1954 SC 634; Narendaa Kumar v Union of India, (1960) 2 SCR 375; State of Maharastra v Himmatbhai Narembhai Rao, (1969) 2 SCR 392; Sushila Saw Mill v State of Orissa, (1995) 5 SCC 615;Pratap Pharma (Pvt.) Ltd. v Union of India, (1997) 5 SCC 87 and Dharam Dutt v Union of India, (2004) 1 SCC 712.
[16] Minerva Mills Ltd. v Union of India, (1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company vM/s Bharat Coking Coal Ltd., (1983) 1 SCC 147.
[17]Supranote 5, Para 36 and Para 37.
[18]Maneka Gandhi v Union of India (1978) 1 SCC248 and K.S. Puttaswamy v Union of India 2017 10 SCC 1.
[19] Information Technology Act, 2000, Act No. 21 of 2000; The Code Criminal Procedure, 1973, Act 2 of 1974; the Telegraph Act, 1885.
[20]Supranote 5, Para 106 to Para 139.
[21]Supranote 5, Para 140.
