Disha Agarwal, Pursuing BBA LL.B. (Hons.) from ICFAI Law School, Hyderabad.
ANURADHA BHASIN v UNION OF INDIA: RIGHT TO ACCESS INTERNET
and Kashmir are territories of India bordering Pakistan that has been a subject
matter of dispute since decades. The issue arose as on 04-08-2019 wherein
mobile and broadband internet services were shut down and subsequently as on
05-08-2019, The Government of India issued Constitution Order, 2019 which
repealed Article 370 and stripped the special status which was enjoyed by Jammu
and Kashmir since 1954. Prior to passing the constitutional order, various
orders were passed such as shutting down of schools and colleges, the tourists
of Amarnath Yatra were advised to make arrangements for their departure at the
earliest. In lieu of repealing Article 370, restrictions were imposed viz:
Section 144 of Cr.P.C was imposed in the territory of Jammu & Kashmir, Mobile
services, telecommunication services had been completely shut down. By W.P. (C)
No. 1031 of 2019, the Petitioner (hereby referred to as Petitioner No 1) contended
that she was unable to publish her newspaper pursuant to the said restrictions
and the said restrictions have unreasonably curtailed the right to report and
publish the news of media personnel and pleaded to pass an appropriate writ or
order directing Respondents to ensure free and safe movement of journalists. Another
subsequent petition W.P. (C) No. 1164 of 2019 (hereby
referred as Petitioner No 2) was filed by a Member of Parliament wherein he
contended that least restrictive measures should be adopted by the Government.
In light of the above facts, the following issues were framed:
exemption be claimed by the Government from producing all the restriction
orders passed by it?
the freedom of speech and expression, freedom to practice any profession, trade
or occupation on the Internet platform constitutes fundamental rights
guaranteed under Part III of the Indian Constitution?
the Government’s order of prohibiting internet services is valid?
the imposition of restrictions on movement is valid under Section 144 of
the freedom of press of the Petitioner No:1 was violated?
Petitioner No 1 contended that internet is absolutely essential for modern
press and the curtailment of the same should be on the basis of test of
reasonableness and proportionality. The procedure for restricting internet
services has been provided under the Suspension Rules which indicate that the
said restriction was scrutinized to be of a temporary nature.
petitioner also contended that the order was passed on the apprehension of
likelihood of danger to law and order, the petitioner argued that the public
order is not the same as law and order and the restrictions passed did not
warrant the passing of such orders.
Petitioner No 2 submitted that emergency can be imposed only during ‘internal
disturbance’ and ‘external aggression’ and none exists in the present scenario.
The petitioner also raised concerns about the imposition of Section 144 of
Cr.P.C and the same shall be specifically targeted against people who may
disturb the peace and an entire state cannot be brought under its ambit. In
addition, he also contended that the official orders must be produced before
the Court and made accessible to the public, the State cannot claim privilege
on the same.
restrictions on internet/communication had been imposed under the Indian
Telegraph Act 1885 which shall be in consonance with Article 19 of the
Constitution. Least restrictive options should have been chosen rather than
imposing a complete ban. A distinction should have been made between the
general internet and social media/mass communication. Right to trade had also
been restricted by imposing a complete ban rather social media apps could have
Petitioners also contended that the wide restrictions imposed are in
contravention to the National Telecom Policy, 2012 and that freedom of speech
and expression allows people to express their opinions on burning topics which
includes ‘Abrogation of Article 370’.
Petitioner submitted that these restrictions shall be in consonance with the
test of proportionality. Proportionality must be determined as to what impact
it has on the fundamental rights of the citizens or to what extent it curtails
the fundamental rights of the citizens.
Contention of Respondents:
Respondents contended that the whole scenario shall be seen in the backdrop of
the terrorism in Jammu & Kashmir. Considering the cross-border terrorism
and internal militancy such preventive measures were necessity. The necessity
of such measures was apparent where similar steps were taken in the past.
· The Respondents assured that the first and
foremost duty of the State is to ensure the safety and security of its
citizens- their lives, their property etc. Thus, the restrictions had been
imposed so as to secure their safety.
Respondents also submitted that there is no restriction on the public movement,
individual movement had never been restricted. The schools were shut down
initially but gradually in few areas depending upon the prevailing circumstances
they have been reopened.
Respondents contended that there is no blanket restriction on the whole of
Jammu & Kashmir, few areas depending upon the threat perception have not
been restricted like Ladakh. Thus, as claimed by Petitioners there is no
relation to internet restrictions, the Respondent contended that there was
never restriction of internet in Jammu and Ladakh regions. In addition, he also
stated that social media could be used as a means to incite violence. It can be
used as a platform to spread fake messages from outside the country. Thus, the
purpose of restriction on internet is to control the situation at the ground
level and not to let it aggravate.
Respondent also submitted that newspapers and social media form different
platforms as newspapers are one-way communication whereas social media pavs the
way for two-way communication by which the messages are spread instantly,
thereby increasing the risk of danger. It also stated that as provided by
petitioners, the restrictions cannot be imposed on a specific group as it is
impossible to distinguish between ordinary citizens and trouble makers.
Court opined that the State is under an obligation to produce the documents
before the Court. It stated that ‘Right to Information’ has been interpreted as
an intrinsic part of Article 19. The Court also added that the State should
take proactive measures in producing the documents before the Court where a
challenge is being made regarding curtailment of fundamental rights.
Court has reiterated in a catena of cases that freedom of speech and expression
over the medium of Internet is an integral part of Article 19(1) and the
restrictions on the same must be in accordance with Article 19(2). It also
recognized that right to trade and commerce through the medium of internet falls
under Article 19(1)(g) and the restrictions on the same can be imposed under
Article 19(6). Thus, Court recognized right to freedom of speech and expression
and right to carry on trade over the medium of internet fall under the purview
of constitution and are thereby protected. Taking into consideration the
history of terrorism in Jammu & Kashmir and various precedents, the Court
opined that any speech which incites imminent violence cannot be protected
Court also analysed doctrine of proportionality in its true essence stating the
goal should be necessary and legitimate, the restriction/measure should be
analysed with the goal sought to be achieved.
authorities must take into account any alternative measures.
State should resort to least restrictive measure only.
restriction or the measures imposed must be amenable to judicial review.
Court recognized the fact that internet could be heavily used as a weapon of
terrorism thereby threatening the sovereignty and integrity of India.
Court upheld the recognition of procedural justice in cases wherein there has
been impact on the fundamental rights of the individuals. The Court also determined
that it had to consider both procedural and substantive elements in order to
construe the legality of internet shut down. Procedural aspects include 2
components: 1) The contractual relationship between Internet Service Provider
and the Government and 2) the statutory component arising from various statutes
such as Information Technology Act, 2000, Code of Criminal Procedure, 1978, and
the Telegraph Act.
requirements have been mentioned under the Suspension Rules of the Telegraph
Act, wherein it provides that such imposition can be put only by the Secretary
to the Government of India in the Ministry of Home Affairs or by the Secretary
to the State Government in charge of the Home Department. The Court also noted
that such restrictions can be imposed only in situations of public emergency
and in the interest of public safety. In addition, the court opined that
complete broad suspension of telecom services must be considered in situations where
it is absolutely necessary and unavoidable and the same should be imposed while
assessing the least intrusive remedy.
the Court stated that as suspension rules do not indicate the maximum duration
of suspension, yet it is to be noted that the suspension cannot be imposed for
an impermissible period and should not extend beyond a certain limit that is
absolutely necessary. In furtherance of the time period of the suspension, the
Court established a review committee to determine its duration.
Court summarized the legal situation on Section 144 of CrPc as the power under
Section 144 of CrPC extends not only to the present danger but also to the
apprehension of danger provided the danger is in the nature of an emergency. The
power should be exercised in a bonafide manner and such a power can be
exercised by relying on material facts. In addition, it also opined that while
exercising the power under Section 144 of CrPC, the magistrate shall be duty
bound to strike a balance between the rights and restrictions.
Court interpreted the Petitioner’s claim regarding Freedom of Press, that the restrictions
do not have a direct impact rather a chilling effect on freedom of speech and
expression. In addition, the Court also found out that the Petitioners failed
to adduce adequate evidence in regard to the imposition on freedom of press and
also considering that the same has been lifted now, the Court did not indulge
more into this issue.
Lastly, the Court upheld
that the restrictions should not in any way suppress legitimate interest of the
people and though the suspension is needed but it should be for a temporary
period and thus asked the State to review its restrictions.
In light of the above
case discussed, the Court has emphasized on the principle of proportionality
and reasonableness at length in lieu of internet restrictions. The critical
aspect of the judgment can be analysed in regard to its diplomacy that how the
court though has upheld freedom of speech and expression as guaranteed under
Indian Constitution yet held a very restrictive approach in not declaring right
to access internet as a fundamental right and thereby failing to provide
immediate relief to the Plaintiff. The judgment though recognises the freedom
of speech and expression as guaranteed under the Constitution yet provides a
diplomatic approach in the analysis of this judgement with the recent Kerala
High Court judgment, where the Court held right to free access to internet as a
The present judgment
suffers from lacunas when it is taken into consideration with regard to the
Covid-19 situation going on where the entire world has shifted to the online
mode even for basic necessities. Right to internet has a much wider scope and
implications. On the other hand the power internet possess to incite violence
terrorism and the history of Jammu & Kashmir cannot be suppressed.
In view of the author,
Freedom of speech and expression over internet has to be regarded in light of
present circumstances, thereby striking g a balanced approach. Though the
suspension may seem absolutely necessary but it cannot be imposed for a longer
duration and few necessary services over the internet have to be restored at
the earliest. The Government should adopt the measures of partial restriction,
whereby it can restrict the usage of apps like facebook, whatsapp, where there
is danger of rapid spread of violence. Other apps or services over the internet
which form absolute necessity may be restored.
Right to access of internet and
internet shutdowns for public emergency in India leaves a vague picture over
all. It is essential to come up with a certain degree of definitive criteria to
impose internet shut down in the backdrop that India is the country with the
majority internet shut downs.