This article is written by Rishita Gupta, Varsha Agarwal and Gautam Badlani. It provides a comprehensive overview of the landmark judgement of Anuradha Bhasin v. Union of India. The article discusses the significance of the judgement and its aftermath. The article gives a detailed analysis of the legality of internet suspension orders and explains the principle of proportionality, which is used to determine the validity of internet restrictions.

This article has been published by Shashwat Kaushik.

Introduction

In today’s  times, the internet has become a necessity. Educational institutions, businesses, medical services, etc operate through the medium of internet. The Internet has not elevated to the pedestal of a basic human right. However, the internet has a negative side too. It can be used to spread rampant misinformation and can be used as a tool to promote social unrest. Thus, throughout the world, we witness that the governments often suspend internet services during riots and violent protests. 

As per the report published by digital rights group Access Now, 84 internet suspensions were recorded in India in 2022. India had the highest number of recorded internet shutdowns in the world. 

Anuradha Bhasin v. Union of India is a landmark judgement which underlines the growing importance of the internet in today’s times and imposes limitations on the power of the government to issue orders imposing blanket ban on internet services. In this case, the Court was dealing with the petition filed by Anuradha Bhasin, a journalist, contending that due to internet suspension in Jammu and Kashmir, she was unable to publish her newspaper and this violated the freedom of press. Another petition was filed by Gulam Nabi Azad, a Member of Parliament, who pleaded that due to the internet suspension, he was unable to meet the members of his constituency, The Supreme Court of India clubbed the two petitions and delivered this landmark judgement wherein the Apex Court laid down guidelines to be followed by the administrative authorities while issuing internet suspension orders.  

Details of the case

• Case no.– Writ Petition (Civil) No. 1031 of 2019 combined with Writ Petition (Civil) No. 1164 of 2019
• Equivalent Citations – (2020) 3 SCC 637, 2020 SCC OnLine SC 25, AIR 2020 SC 1308
• Court- Supreme Court of India (Civil Original Jurisdiction)
• Bench– N. V. Ramana, R. Subhash Reddy and B. R. Gavai, JJ.
• Petitioners– Anuradha Bhasin and Gulam Nabi Azad
• Respondents- Union of India & Others
• Judgement Date– 10th January, 2020

Facts of Anuradha Bhasin v. Union of India, 2020

The Home Department of Jammu and Kashmir issued an advisory in January 2019 asking visitors to cut short their trip to the state and make safe arrangements for their return. Subsequently, the government issued orders for the closure of educational institutions and offices in the state. Ultimately, on August 4, 2019, an order was issued for the suspension of internet services. Access to the internet was curbed until further notice. The next day, Constitutional Order No. 272 was issued by the President, and all the provisions of the Indian Constitution were made applicable to the State of Jammu and Kashmir. The Constitutional order terminated the special status enjoyed by the state since 1954. The order amended Article 370 of the Indian Constitution to revoke the special status conferred on the state of Jammu and Kashmir. Article 370 provided a certain degree of autonomy to the former state of Jammu and Kashmir within the Indian Union. The makers of the Constitution had inserted this Article as a temporary provision to facilitate negotiations between the Indian government and political leadership of the state in order to determine the political status of Jammu and Kashmir. 

The state of Jammu and Kashmir had its own Constitution, and the Indian Constitution did not apply to the  state in toto (as a whole). By Order No. 272, the system of separate state constitution for Jammu and Kashmir was removed. 

Subsequently, the Magistrate issued an order under Section 144 of the Code of Criminal Procedure, 1973 and prohibited public gatherings on the ground of apprehension of danger to public order and peace. This order was challenged before the Delhi High Court on the ground of being violative of Article 19 of the Indian Constitution. Due to the restrictions imposed by the order, journalists were not able to effectively report on the affairs of the state. 

In this background, the petitioners challenged the constitutional validity of the restrictions on public movements and suspension of internet services before the Supreme Court of India under Article 32 of the Constitution.

Arguments advanced in Anuradha Bhasin v. Union of India, 2020

This section entails various arguments put forward by both sides of this case. 

Petitioners

The primary contentions of the petitioners were that blanket internet suspension order violated the freedom to carry on any trade, business and profession guaranteed under Article 19(1)(g) of the Constitution and the freedom of Press which is a facet of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Moreover, the petitioners contended that the internet suspension orders did not comply with the Telecom Services (Public Emergency or Public Service) Rules, 2017. The government had not provided any reasons for the internet suspension nor did it fix any deadline within which the suspension would be lifted. 

Several Interlocutory Applications had also been filed challenging the internet suspension order. However, after entertaining some applications, a Coordinate Bench of the Supreme Court observed that the hearings had been delayed for a long time due to the interventions. In view of the expediency of the matter and the delays caused during the hearing, the Coordinate Bench thus declined to entertain any further interventions in the matter.

Writ Petition (Civil) No. 1031 of 2019 

• This petition was filed by Ms. Anuradha Bhasin. She is the executive director of the Kashmir Times and looks after the publication of the Srinagar edition. Ms. Bhasin pleaded that the internet is a necessity in modern days. Due to the restrictions imposed on internet services, print media had come to a standstill in the state. Ms. Bhasin was unable to publish her newspaper due to the internet restrictions. She argued that the internet suspension orders were not based on any material grounds, and they had been passed on mere apprehension of danger to law and order. 
• Ms. Bhasin pleaded that neither public order nor law and order were in any danger, and thus, the orders were unconstitutional. 
• An intervenor argued that there is a need to balance the measures aimed at safeguarding national security with the rights of citizens. The state was justifying its actions on the basis of the prevalent law and order situation in the state. However, permitting the state to suspend internet services every time the public order is disturbed would result in broad unchecked powers in the hands of the government. It will subsume individual rights over social control. He submitted that restrictions imposed are in contravention of Indian National Telecom Policy, 2012. Lastly, he said that restrictions imposed were temporary in nature but are being imposed for more than 100 days, which should be taken into consideration while deciding the matter.
• The intervenor argued that the order of the Magistrate must be judged in light of the circumstances prevailing on the date on which the orders were passed. The Court must determine whether, on the date on which the Magistrate had issued the internet suspension order, the situation was so grave that a blanket ban on internet was necessitated. 
• The necessity to publish internet suspension orders is part of natural justice, and it also be made accessible to the public. If the order is made accessible to the public, then they would be able to raise their grievances and make representations before the authorities, This would enable the authorities to make well-informed decisions as they would be aware of the grievances of the people. The state cannot claim any privilege before the court for not producing judgements. The intervenor argued that the validity of the restrictions imposed by the government should be tested on the basis of the proportionality test. In determining proportionality, the court should not only consider the physical and legal restrictions imposed on the citizens, but also the fear that the restrictions are likely to engender in the minds of the general public. 
• The petitioner contended that the suspension of the internet was not in accordance with the Telecom Services (Public Emergency or Public Service) Rules, 2017. The government had not provided the reasons for the suspension of the internet and thus infringed on the suspension rules. Rule 2(2) expressly states that the internet suspension order must specify the reasons for the suspension of the internet. 

Writ Petition (Civil) No. 1164 of 2019 

• This petition was filed by Mr. Ghulam Nabi Azad. Mr. Azad is a Member of Parliament, and he argued that the government cannot claim privilege to resist producing administrative orders before the court. He pleaded that ‘emergency’ can be declared under certain specific conditions. In the present case, there was no evidence of any ‘internal disturbance’ or external aggression, and thus, the suspension of internet on the ground of public emergency was unjustified. 
• An order under Section 144 of the Code of Criminal Procedure (CrPC) can be issued only in cases of breach of law and order. In the present case, there was no breach or apprehension of danger to law and order. In any case, the government should have imposed restrictions on the people who were likely to disturb public order. The government, however, imposed blanket restrictions on the entire state. The restrictive measures have to be judged against the fundamental rights of the citizens, and the least restrictive measures have to be adopted. The petitioners pleaded that restrictions on internet services affect the freedom of speech and expression as well as the freedom to carry on any trade, business, or profession.  Due to the suspension of the internet services, people were unable to express their views on social media platforms and the press was unable to broadcast its reports. Moreover, the business which relied on digital platforms had come to a standstill. 
• Azad pleaded that due to the restrictions imposed on communication, he was unable to travel to Jammu and Kashmir and was unable to communicate with the people of his constituency. 
• The government had not proved the presence of ‘external aggression’ or ‘internal disturbance’, and hence the imposition of restrictions was unjustified. 
• The petitioners argued that the government should have imposed restrictions only on social media websites, and that a blanket ban on the internet was uncalled-for. 
• Restrictions cannot be imposed generally on the movement of the public and must be imposed on specific individuals who are apprehended for disturbing the peace. 

Intervenor in Interlocutory Application No. 139555 in Writ Petition (Civil) No. 1031 of 2019 

• The intervenor contended that the restrictions on the internet must be temporary in nature. However, in the present case, the restrictions had continued for more than 100 days. 

Intervenor in Interlocutory Application No. 140276 in Writ Petition (Civil) No. 1031 of 2019 

• The intervenor contended that the order imposing restrictions on telecom services was unenforceable as it had not been published. The petitioners contended that publication is an essential feature of the principles of natural justice. The orders were not made available to the public, and the government refused to present the orders before the court on the ground of privilege communication. 

Writ Petition (Criminal) No. 225 of 2019

• Although the petition was withdrawn during arguments, the petitioner submitted that the restrictions imposed on the internet caused harm even to law abiding citizens.

Respondents

The primary contentions of the respondents were that the internet services can be used to spread flagrant misinformation, which can disturb public disorder. Thus, it was necessary to suspend the internet services. The Magistrate had issued the internet suspension order after analysing the ground situation prevalent in the state. The internet services were being restored in a phased manner depending on the situation of law and order. The internet was suspended to prevent violent protests. 

Mr. K.K. Venugopal, learned Attorney General for Union of India

• The Attorney General submitted that the background of terrorism in Jammu and Kashmir has to be taken into account. He submitted that before passing the order, “the cognizance of problems in the state” has to be taken into consideration. It will be foolish not to take any preventive measures, knowing that cross border terrorism and internal militancy are widespread in the state of Jammu and Kashmir. Knowing the background, if the government does not take any measures, there can be huge violence. 

Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir 

• The Solicitor General submitted that the first and foremost duty of the State is to protect the citizens. And knowing the history of Jammu and Kashmir, such measures are necessary to be taken. The state is suffering from both physical and digital cross border terrorism. Countering the arguments of petitioners and intervenors, the Solicitor General said that they don’t know the exact situation in Jammu and Kashmir and that individual movements were never restricted. The restrictions imposed were gradually relaxed, depending on the circumstances of that area. 
• The orders under Section 144 CrPC were passed by the Magistrates within their respective jurisdictions. The Magistrates exercised their discretion while taking into account the actual situation in that area. The restrictions, which were earlier imposed on the basis of threat perception, were subsequently relaxed as the situation improved and televisions, radio channels, and newspapers resumed functioning in all areas, including Srinagar, where the petitioner is situated. There were no restrictions imposed in Ladakh region, which shows that there was an application of mind while passing the order, and there was no “general clampdown” stated by the petitioners.
• The orders passed under Section 144 of CrPC can be preventive in nature in order to ensure the safety of citizens. The Solicitor General submitted that, seeing the situation in Jammu and Kashmir, orders passed can be justified as they were necessary for the maintenance of “the security of the state”.
• He submitted that the internet was never restricted in the Jammu and Ladakh regions. Through social media, messages can be sent to a large number of people at once, which can be used to incite violence. Therefore, the use of social media was restricted as the internet can be used to circulate fake news, images, and messages. The dark web allows the purchase of illegal weapons. The attempt to ban access to only certain sites while continuing access to the remaining sites failed in 2016. 
• The respondents also drew a distinction between newspapers and the internet. They submitted that through newspapers, there is only one-way communication, but with the internet, there is two-way communication, which makes it very easy to spread misinformation. Different reasoning is to be applied while imposing the restrictions on both. 
• Responding to the petitioners’ arguments that the restrictions should have been imposed against specific individuals, the respondents submitted that it was impossible to segregate the troublemakers from ordinary citizens. 
• The Magistrate passed the orders under Section 144 of CrPC based on the prevailing circumstances. There was speculation of violent protests against the decision to abrogate Article 370. Proactive speeches were being made in public domain, and thus, the orders imposing restrictions on the internet were passed by the officers. The officers had not acted mala fide, and their actions were solely aimed at safeguarding the security of the state. 
• In 2016, the government tried to block access to limited sites while continuing access to remaining services and websites. However, such a move was unsuccessful, and thus, the government decided to impose a complete restriction on internet services in the present case. 
• The degree of restrictions should be determined by the officers who are well aware of the ground realities and not by the courts. 

Issues raised in Anuradha Bhasin v. Union of India, 2020

On the basis of the facts of the case and the arguments advanced by the parties, the Court framed the following questions of law for its consideration:

1. Whether the government could claim privilege to escape producing administrative orders issued under Section 144 before the Court?
2. Whether the freedom to carry on any trade, occupation or profession through the medium of internet comes within the domain of Article 19(1)(g)?
3. Whether the government was justified in prohibiting access to internet services?
4. Whether the orders issued by the Magistrate under Section 144 of the CrPC were lawful. 
5. Whether the restrictions imposed by the government had violated the fundamental rights of Ms. Anuradha Bhasin. (petitioner). 

Court’s decision with reasoning

The Court held that the government cannot refuse to produce internet suspension orders before the Court. Moreover, the government must regularly review the suspension orders, and it cannot indefinitely suspend the internet services. While the internet services can be suspended to safeguard public order, the restrictions on internet services cannot be arbitrary and excessive. The Court ordered the government to publish or notify the internet suspension orders in the public domain. 

Can the Government claim exemption from producing all the orders passed under Section 144 of the Code of Criminal Procedure and other orders under the Suspension Rules

The court held that the state had to produce the order placing restrictions before the court. The Court cited the difficulty in determining the legality of the restriction imposed when the state refused to produce the order before the court. On the obligation of the state to disclose information, especially in a writ petition, the court cited the judgement passed in Ram Jethmalani v. Union of India (2011) and observed that in order to make Article 32 meaningful, the petitioners should be provided with all the relevant information that is needed to articulate the case. Article 19 can be interpreted in a way where the right to information is one of the important facets of freedom of speech and expression. 

The Court pointed out that the state cannot pass any law in a secret manner on mere apprehension of danger. The state should take proactive measures in producing orders before court unless there is special privilege or countervailing public interest. Whether a case involves public interest or privilege, which can override the petitioner’s rights, has to be decided by the court according to the facts and circumstances of the case. In the present case, initially the state claimed privilege and refused to produce the orders, but later on, the state produced some orders and cited difficulty in producing the remaining orders. Hence, this cannot be a valid ground or reason to refuse to produce the order. 

The Court directed the State to present all the orders that led to the imposition of Section 144 CrPC and the ban on telecom services, including the internet. We can say that this direction of the Court is justified because such impositions and bans affect the Fundamental Rights of the people. So, the people have the right to know on which grounds such impositions and bans are applied. The Court also said that the test of Proportionality should be satisfied so that there isn’t any violation of natural justice. 

Whether the freedom of speech and expression and freedom to practise any profession or to carry on any occupation, trade or business over the Internet are part of the fundamental rights under Part III of the Constitution 

The Court held that Article 19(1)(a) embodies the fundamental right of speech and expression, and this right includes the right to make any expression through the medium of the internet. The Court observed that nowadays, the internet has become one of the most important sources for disseminating information. Through the medium of the internet, information can be provided to millions of people in the blink of an eye. Thus, the freedom to make any speech or expression through the medium of the internet is an important facet of Article 19(1)(a), and the government cannot impose undue restrictions on this valuable freedom. 

The Court did not delve into deciding whether the right to access the internet is a fundamental right or not, as none of the parties had argued on that issue. The court further emphasised the term ‘reasonable’ which is limited to follwing things- 

• the sovereignty & integrity of the nation; 
• security of state;
• friendly relations with the foreign state;
• public order, decency, morality, or 
• contempt of Court, defamation, and 
• incitement to an offence. 

The Court in various judgments held that restriction also includes complete restriction, but there should be no excessive burden on freedom of speech, and the government has to justify why lesser restrictions would be inadequate. For instance, in Madhya Bharat Cotton Association Ltd vs Union Of India (1954), the government had restricted the petitioner from carrying on the trade of hedge contracts. The government had banned all cotton contracts except those which had been approved by the Textile Commissioner. The petitioner challenged the power of the government to impose such a complete prohibition on cotton trade. The Court upheld the power of the government to impose a total prohibition on cotton trade and observed that cotton is essential to life and thus the government may, for a time, prohibit all normal trading operations relating to cotton. 

Similarly Sushila Saw Mill v State of Orissa (1995), the government had prohibited the operation of Saw Mills. The power of the government to completely prohibit the functioning of the Saw Mills was challenged before the Supreme Court of India. The Court, while upholding the validity of the prohibition, observed that the government may impose restrictions on the freedoms guaranteed under Article 19 in the interest of the general public. In rare case, the prohibition may extend to complete prohibition. 

Whether complete prohibition is justified or not is a question of fact that has to be decided by the court on a case-to-case basis. Whether the restrictions are least intrusive has to be determined by balancing and proportionality. The Court cautioned that the complete suspension of internet services is a drastic measure which should be undertaken only if it becomes necessary and unavoidable. 

The Court discussed the geopolitical situation in the state and observed that the state has long been plagued by terrorism. Modern terrorism relies heavily on the internet, which is used to raise money, spread ideologies and recruit people. The Solicitor General argued that ‘war on terrorism’ requires such restrictions so as to “nip the problem of terrorism in the bud.”

The Court discussed the U.S. First Amendment and observed that speech that incites violence does not come under freedom of speech. During the U.S. civil war, Clement L. Vallandigham said that war was ‘wicked, cruel, and unnecessary’. Later, he was found guilty of espionage and imprisoned. The U.S. enacted the Espionage Act of 1917, which penalised anyone who “wilfully caused or attempted to cause insubordination, disloyalty or mutiny by refusal from duty or naval services.” In Abrams v. United States (1919), Justice Holmes observed that the government can punish speech that intends to produce a clear and imminent danger. This power to punish dangerous speech is greater in times of war. In the case of Brandenburg v. Ohio (1969), the court held that the state cannot punish advocacy of any unlawful conduct unless it is intended or likely to incite ‘imminent lawless action’. 

The Court in CPIO v Subhash Chandra Aggarwal (2019), observed that proportionality ensures that “neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question.” 

In the case of Modern Dental College & Research Centre v. State of Madhya Pradesh (2016), the Supreme Court observed that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in the public interest might therefore be justified.” Whenever two fundamental rights are in conflict, they must be balanced so that they “harmoniously coexist with the others.” 

The court opposed the state’s argument that selective internet sites cannot be banned due to a lack of technology. The Court pointed out that if such an argument is accepted that the state has the power to do complete blockade every time a threat to law and order is apprehended, then it would result in arbitrary powers in the hands of the government. It is the duty of the courts to observe that while ensuring peace and tranquillity the executive does not place an excessive burden on freedom of speech and expression.

The Court observed that the development of technology  seldom corresponds to similar developments in law. The law must evolve itself and imbibe the developments in technology. The internet is also a very important tool for trade and business. Some trades are exclusively dependent on the internet, and the right to carry on trade and commerce through the internet is constitutionally protected under Article 19(1)(g). However, this right is subject to the restrictions contained in Article 19(6).

The Court did not rule on whether access to the internet is a fundamental right or not. The Court stated that mere internet suspension would not amount to infringement of fundamental rights, as the government can impose reasonable restrictions on the fundamental rights. However, the restrictions must not be excessive and disproportionate to the object sought to be achieved by such restrictions.

Doctrine of proportionality 

The Court also discussed the doctrine of proportionality and observed that the doctrine has been etched in the Indian Constitution by the use of the word ‘reasonable’ in Article 19. Article 19 permits the state to impose only reasonable restrictions on freedom of speech and expression. This principle implies that the legislature or the administrator should strive to achieve a proper balance between the purpose of the legislative or administrative order and the adverse effect that the legislation or order is likely to have on the rights and liberties of the concerned persons. 

The restrictions imposed on a person should not be arbitrary and excessive. Only such restrictions should be imposed as are necessary for the interest of the public at large. The legislature or administrator has discretion in deciding the range of restrictions to be imposed, but the judiciary will determine whether the restrictions excessively infringe on the rights of the subjects. 

The German Federal Constitutional Court has laid down a four pronged test to determine proportionality. 

• Firstly, the restrictions should serve a legitimate goal. 
• Secondly, the restrictions should be suitable for furthering the legitimate goal. 
• Thirdly, it must be determined whether there is an equally effective but less restrictive alternative available. 
• Lastly, it must be determined whether the restrictions disproportionally affect the rights of the subjects. 

Canada, on the other hand, has developed the Oakes test to determine the proportionality of the restrictions to the object to be served. Under this test, the goal of the restrictions must be compelling enough to override constitutionally guaranteed rights. There should be a nexus between the restrictions imposed by the government and the object sought to be achieved by such restrictions. The measures should be the least restrictive and there should be proportionality between the effect of the restrictive measures and the goal sought to be achieved by them. 

Unlike the German test, which mandates a less restrictive effective measure, the Oakes test calls for the least infringing measure and does not stipulate any requirement of effectiveness. 

The Indian courts have relied on the German test while determining the proportionality of the restrictive measures. In Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India (2018) (Aadhar judgement), Justice Chandrachud pointed out that a law restricting fundamental rights should have a legitimate State aim. There should be a rational nexus between the restrictive measures, the situation in fact and the goal sought to be achieved by the restrictions. The restrictions must only serve and protect legitimate purposes and should be necessary to achieve the State aim. The territorial as well as temporal scope of the restrictions should have a relationship with the goal sought to be achieved. 

Was the Government’s action to prohibit internet access valid 

The Hon’ble Supreme Court turned its attention to the procedural aspect of the law and said procedural justice cannot be sacrificed on the altar of substantive justice. The Court observed that the procedural mechanism laid out for restrictions on the internet is two-fold: contractual and statutory. In the present case, the latter part was dealt with because it was more relevant to the case at hand. 

The Court said that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with the Information Technology Rules, 2009 for blocking access to the internet, as these provisions authorise the government to block access to particular websites on the internet, while in the present case, the government had imposed a blanket ban on the internet. 

Prior to 2017, any measure restricting or shutting down the internet was passed under Section 144 of CrPC. Section 144 granted wide powers to magistrates for passing orders restricting internet access if there was any apprehension of danger. But after the enactment of Suspension Rules under Section 7 of Telegraph Act, the position changed. Rule 2 lays down the procedure that has to be followed for the telecom suspension. A competent authority is specified under Rule 2(1), who, in ordinary circumstances, can issue suspension orders.

In Hukam Chand Shyam Lal v. Union of India (1975), the Supreme Court interpreted Section 5 of the Telegraph Act. The Court observed that Section 5 does not give unbridled power to the government to take possession of any telegraph. The existence of a public emergency is the sine qua non for exercising the power stipulated under Section 5. The Court observed that the term ‘public emergency’ has not been defined in the Section and interpreted ‘public emergency’ as an emergency that adversely affects the interest of the general public, sovereignty and integrity of the nation, Security of the State, public order, friendly relations with foreign countries or which incites the commission of an offence. 

The same interpretation was followed in PUCL v. Union of India (1996). The Court rules that a suspension order can be passed only if there is some “public emergency” or if such an order is “in the interest of public safety”. The meaning of the phrase “public emergency” can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it. Also, the Supreme Court stated that the definition of “emergency” varies. For example, Article 4 of the International Covenant on Civil and Political Rights defines a public emergency as an emergency that threatens the life of the nation and whose existence is officially proclaimed. Comparable language has also been used in Article 15 of the European Convention on Human Rights, which defines a public emergency as an emergency that threatens the life of the nation”.The Supreme Court held that a ‘public emergency’ must be of a serious nature and only then would an order restricting access to the internet be justified. Another requirement of Section 5(2) is that the authorities should be satisfied that it is necessary or expedient to pass the order. 

There were eight orders placed before the court. Four were passed by the Inspector General and the other four by the Government of J&K. The Court said that any new restrictions have to be passed in accordance with the new order. Since all the orders were not presented before the Court, the Court accordingly moulded the relief in the operative portion.

The Court observed that even though the Telecom Services (Public Emergency or Public Service) Rules, 2017 do not provide for the publication or notification of the order, the order must be made freely available to the public as publication of the order is a part of the principles of natural justice. The Court observed that any law or rule that affects the life, liberty or property of individuals should be notified in the public domain. The Court thus read in the requirement of notification and publication in the Suspension Rules and directed that the suspension order should be made freely accessible to the general public through an appropriate mechanism. 

The Court further pointed out that publication of the order would facilitate the right of the aggrieved persons to challenge the constitutionality of the order. The Court held that even though no appellate mechanism has been provided under the Suspension Rules to challenge the validity of the order, it is a settled legal principle that administrative orders can be challenged before a court of law. The Court thus held that an aggrieved person can challenge the validity of an order made under the Suspension Rules before a High Court under Article 226 of the Indian Constitution. 

Procedure for suspension of internet 

The procedure for suspension of the internet is prescribed under the Telecom Services (Public Emergency or Public Service) Rules, 2017. As per the Rules, telecom services can be suspended by both the Government of India and the concerned State Government. In the case of the Government of India, the order has to be issued by the Secretary to the Government of India in the Ministry of Home Affairs. In the case of the State Government, the order has to be issued by the Secretary to the State Government in-charge of the Home Department. 

In extraordinary circumstances, the order for suspension of telecom services can also be issued by the Joint Secretary to the Government of India. The order of the Joint Secretary must be confirmed by the competent authority within 24 hours of its issue. 

An order for suspension of telecom services must clearly state the reasons for such directions. The order has to be forwarded to the Review Committee on the next working day. Both the Central and the concerned state government have to constitute a Review Committee. The Review Committee constituted by the Central Government will consist of the following members:

• Cabinet Secretary
• Secretary to the Government of India In-charge, Legal Affairs 
• Secretary to the Government, Department of Telecommunications

The Review Committee constituted by the State Government will consist of the following members:

• Cabinet Secretary
• Secretary Law or Legal Remembrancer In-charge, Legal Affairs
• Secretary to the State Government  

The Review Committee has to meet within 5 days of the issue of the order and has to record its findings on whether the order complies with the requirements of Section 5 of the Indian Telegraph Act, 1885. Section 5 deals with the power of the Government to obtain possession of licensed telegraphs and intercept messages. It states that the Government can prevent the transmission of messages or order the interception of messages in case of a public emergency or for the purpose of safeguarding public interests. Such orders can be issued if the government is satisfied that it is necessary or expedient to do so in the interests of the sovereignty and integrity of India, public order, friendly relations with foreign countries, or preventing the commission of any offence. 

Safeguards in Section 144 CrPC

The Court enumerated five safeguards that have been etched in Section 144 of the CrPC. These safeguards are:

• For issuing an order under Section 144, the magistrate must be of the opinion that the issuance of the order would prevent annoyance, obstruction or risk to human life and safety. Thus, the Magistrate must be of the opinion that there is sufficient ground for the issuance of an order under Section 144. The Magistrate should conduct a careful inquiry prior to the issue of the order and must be of the opinion that the speedy remedy is desirable. 
• Once the Magistrate is satisfied that an order needs to be issued under Section 144, the Magistrate can direct an individual to do or refrain from doing something. However, the Magistrate cannot issue a blanket order. The magistrate must state the material grounds upon which he arrived at the opinion that an order needs to be issued under Section 144. 
• The order must be served on the person against whom it is made. If such person cannot be found, then the order should be notified by proclamation and publication. Only in exceptional and emergency situations can an order under Section 144 be issued ex parte. 
• An order issued by a Magistrate under Section 144 can stay in force for a maximum period of two months. However, the State government may extend the application of the order for a further period of 6 months if the State government is of the opinion that such extension is necessary for preventing danger to human life and health. 
• The order can be altered or rescinded by the Magistrate either suo motu or on the application by an aggrieved person. The State Government may also suo motu alter or rescind the order made by the Magistrate. When an application for rescinding or altering the order is made before the Magistrate or the State Government, the authority must act judicially and should provide a personal hearing to the aggrieved persons. If the application is rejected, then the reasons for refusal shall also be provided. 

If certain sections in a particular area are disturbing public order and the Magistrate finds it difficult to distinguish between ordinary citizens and persons engaged in unlawful activity, then the Magistrate can pass an order affecting the entire area. However, any aggrieved person can file an application before the Magistrate seeking exemption from the order or seeking permission to carry on the lawful activity. The validity of the order can be challenged before the High Court, and the High Court may quash the order by exercising its revisionary powers. 

However, the Court observed that an order under Section 144 should be quashed only in cases of patent illegality, extraneous consideration, or where the order has been made with an ulterior motive and without jurisdiction. Interference with orders should be an exception, not the norm. 

The purpose of Section 144 is to protect society from persons who imperil public health and safety and cause serious disturbances. However, the disturbance must be of sufficiently grave character and only then it would be deemed to affect public order. Orders passed under Section 144 directly affect the fundamental rights of citizens, and thus, these orders must not be passed in a casual and cavalier manner. 

Was the imposition of restrictions under Section 144 CrPC valid

The petitioners argued that for the imposition of Section 144 of CrPC, the state needed to prove that there existed a circumstance that was likely to create annoyance, obstruction to any person or might cause disturbance to public tranquillity. They said restrictions can’t be imposed merely on the basis of apprehension. The respondents pleaded that the volatile history of the state should be taken into consideration while determining the validity of the orders. The respondents pointed out that there was overwhelming material available, which indicates that aggressive and nefarious secessionist activities were being planned throughout the state. Proactive statements, aimed at causing public unrest, had been made by public leaders. All these circumstances made it necessary for the government to issue restrictive orders under Section 144. 

The Court observed that Section 144 of the CrPC is a tool that enables the government to effectively prevent imminent public menaces. The provision enables the government to take preventive measures to prevent public threats and maintain tranquillity and peace. However, the powers conferred on the officials under Section 144 are not absolute. Certain safeguards have been etched in Section 144. These include a mandatory prior inquiry before issuing the order and the mandate to modify the order if the situation improves. 

In State of Bihar v. Kamla Kant Mishra (1969), the Supreme Court had to consider the Constitutional validity of Section 144(6) of the CrPC as it then existed. The provision authorised the government to indefinitely extend an order passed under Section 144. The Court held that such a power was arbitrary and unconstitutional. The provision did not provide any limitation on the duration of the applicability of the order and did not provide any mechanism to make a representation against an order made under Section 144.  

In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970), the SC highlighted that power under Section 144 CrPC must be exercised in urgent situations, and “the emergency must be sudden and the consequences sufficiently grave”; it should be exercised in a judicial manner that can withstand judicial scrutiny. 

In Gulam Abbas v. State of UP (1981), the Court said that an order passed under Section 144 CrPC is an executive order that can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. In Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, the Court reiterated that repetitive powers under Section 144 of the CrPC would be an abuse of power. 

The Court held that the power under Section 144 cannot be used to suppress legitimate expression of opinion, grievance, or exercise of any democratic rights. The power under the said section has to be exercised in a situation of emergency and for the purpose of preventing obstruction, annoyance, or injury to any person lawfully employed. 

The petitioner contended that ‘law and order’ is of a narrower ambit than ‘public order’ and if Section 144 is invoked for the ‘law and order’ problem, then that would justify the ‘public order’ problem as well. In Ram Manohar Lohia v. State of Bihar (1965) the Court distinguished between ‘law and order’ and ‘public order’, former being the larger circle and comprising the latter in its ambit. Therefore, the Court held that mere disturbance in law and order may not necessarily lead to a breach of public order. 

The Court said that it is up to the magistrate and the State to decide about the likely threat to public peace & law and order. However, they should state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. However, it is imperative that the state make such an order public because there exists a fundamental principle of law that no person should be deprived of his liberty, but if a restriction is placed on this principle checking the reasonableness of the same is palpable. 

To summarise, the Court held that Section 144 of the CrPC can be exercised when there is present danger as well as apprehension of danger. It can’t be used to suppress legitimate opinions, grievances, or exercise of any democratic rights. An order passed under Section 144 should state material facts to enable judicial review of the same. The magistrate is duty bound to apply the principle of proportionality to the restrictions and should balance the rights. Repetitive orders would be an abuse of power. 

Was the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 violated due to restrictions

The petitioners contended that restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed the freedom of the press and journalists’ ability to perform their professional duties. The Court rejected this plea. The Court began by elaborating on freedom of the press and mentioned the case of Channing Arnold v. the Emperor (1914), a Privy Council judgement that for the first time recognized the freedom of the press. Therefore, it is unquestioned that freedom of the press is one of the quintessential features of a democracy, which is very well protected by the Constitution. 

The petitioners contended that restrictions on freedom of the press led to infringements on their rights, which are protected by the Constitution. However, the Court mentioned that this principle of freedom of speech should be used judicially, otherwise it may result in a “self-proclaiming instrument”. 

The Court said that the petitioners failed to prove that the restrictions imposed by the government infringed the freedom of press. Since the petitioner failed to produce evidence, therefore, the Court couldn’t distinguish whether it was a legitimate claim for chilling effect or a mere emotive argument for the purpose of self-fulfilment. 

The Court observed that since the petitioner had resumed publishing, there was no need to pass any order in this regard. The Court advised the government to act in a responsible manner and not restrict freedom of press in an arbitrary manner. The government should try to accommodate the journalists as much as possible to enable them to report effectively. 

Directions issued by the court 

After deciding each of the above-mentioned issues, the Court issued the following directions:

• The State was directed to publish all orders in force and all future orders issued under Section 144 of CrPC and the Suspension Rules, 2017. 
• Restrictions on freedom of speech and expression and freedom to carry on any trade, business, profession, or occupation must pass the test of proportionality.  
• Internet cannot be indefinitely suspended under the Suspension Rules, 2017. Suspension can only be for a temporary duration, and the suspension order must be based on the principle of proportionality. 
• The Court observed that the existing Suspension Rules neither provide for a periodic review of the internet suspension nor prescribe a time limitation for the suspension. The Court directed the Review Committee to conduct a periodic review of the order every seven working days. 
• The authorities were directed to review all existing internet suspension orders and revoke orders that do not comply with the test of proportionality. 
• Power under Section 144 of CrPC must be exercised in a bona fide and reasonable manner and must be based on material facts that indicate application of mind by the authorities. 
• The authorities were directed to consider allowing access to government websites, baking services, and hospital services. 
• Power under Section 144 is remedial as well as preventive. Thus, it can be when there is any danger or when there is any apprehension of danger. However, the danger should be in the nature of an emergency. 
• Issuing repetitive orders under Section 144 would amount to abuse of power. 

Compliance of Anuradha Bhasin guidelines

After the Anuradha Bhasin judgement, the Foundation of Media Professionals, one of the original petitioners in the Anuradha Bhasin case, followed up for the implementation of the guidelines. They found that many states continued to impose internet shutdowns in violation of the guidelines and did not notify the internet suspension order in the public domain. Thus, the Foundation filed a miscellaneous application before the Supreme Court and prayed for the implementation of the guidelines. 

The Foundation made three prayers to the Court:

• Firstly, it prayed for a direction to the competent authorities to proactively publish orders relating to internet shutdown and telecommunication restrictions. 
• Secondly, the Foundation pleaded that information relating to the internet shutdown order should be made available to the public through Right to Information (RTI) applications. The authorities should be directed not to deny the applications by claiming blanket exemption. 
• Thirdly, it sought clarification to the effect that internet shutdowns can be ordered only under Telecom Rules, 2017 and not under Section 144 of CrPC.

The Foundation argued that despite the Anuradha Bhasin guidelines, many states were ordering internet shutdowns without publishing the orders. Moreover, the state governments were denying RTI applications seeking information on internet shutdowns. 

The Supreme Court admitted the application and issued notice to the concerned parties. However, in December 2023, the Court pointed out that once directions have been issued in the Anuradha Bhasin case, the same issue cannot be re-opened through a miscellaneous petition. The Court thus allowed the parties to withdraw their application. Internet was subsequently restored in the entire Union Territory of Jammu and Kashmir in February, 2021. 

Telecom Bill, 2023

In December 2023, the Lok Sabha passed the Telecommunications Bill, 2023. The 2023 Bill was passed by the Lok Sabha on December 20 and by the Rajya Sabha on December 21, 2023. The Bill defines telecommunication as the transmission, reception, and emission of messages by radio, wire, optical or other electro-magnetic systems. The definition would cover such messages irrespective of whether or not they have been subjected to any computation, rearrangement, or any other change in the course of transmission. The definition is broad enough to cover internet-based services.  

The Bill empowers the government to take possession of telecom services in cases of public emergency and in the interest of the general public. The Bill seeks to replace the Indian Telegraph Act, 1855 as well as the Indian Wireless Telegraphy Act, 1933. 

The Bill provides that telecom service providers would be required to obtain prior government approval for establishing and operating telecommunication services and for possessing radio equipment. The Bill authorises the government to intercept telecommunication messages on specific grounds, such as security of the state and public order. Spectrum will be allocated by the government through an auction. However, spectrum may also be administratively assigned for certain specific purposes. 

The Telecommunication Bill has been criticised on the grounds that it might allow mass surveillance. The Bill does not provide any procedural safeguards against the power to search premises and vehicles. However, the Bill states that procedural safeguards concerning the interception of telecommunication messages would be laid down by the Central Government. Thus, effective safeguards can be provided by enacting appropriate Rules under the Telecommunications Act.

Conclusion

In this case, the court passed a number of judgements, which left a ray of hope for betterment in this area. To summarise, the court held that the government cannot claim an exception from producing any order before the court passes under Section 144 of the CrPC, and whether the government can claim exemption or not is a matter of fact that is to be decided by the court in every case according to the facts and circumstances. Further, the court said that nowadays the internet has become an essential part of everyday life and thereby freedom of speech and expression and freedom to practise any profession or to carry on any occupation, trade or business over the Internet are part of the fundamental rights under Part III of the Constitution. 

Moreover, the court held that while the officials can pass orders restricting the internet, there must be “unavoidable circumstances” necessitating the restrictions, or otherwise the order passed will cease to exist. There can be the imposition of restrictions under Section 144 of the CrPC on apprehension of danger, but it cannot suppress the legitimate opinion of the public, and repetitive orders of restrictions lead to abuse of power. In the last issue, the court did not indulge in the matter as the petitioner had resumed publication. But it said that, as a responsible government, freedom of the press should be taken care of. 

The Court has allowed it to impose a complete prohibition on freedom of speech and expression, which can be misused by the government to suppress any voice that reasonably questions the actions of the government. 

The Court said that, as per power under Section 144, even if there is an apprehension of danger, the said Section can also be imposed. However, this power can be misused by the government or the State for their benefit, as in they can impose the section whenever it suits their needs or aspirations without their actual apprehension. So, there should be an authority that can check the power of the Government without being biassed and with neutrality over the issue.

Therefore, it can be said that with the passage of time, the doctrines held in this case will age well and can be used more judiciously to render justice. To cite Robert Browning’s poem Rabbi Ben Ezra, the doctrines may yet “come grow old with me, the best is yet to be”.

Frequently Asked Questions (FAQs) 

What is the difference between ‘law and order’ and ‘public order’?

‘Law and order’ refers to disorders that are of lesser gravity as compared to ‘public order’. Thus, an act may breach ‘law and order’ but might not affect ‘public order’. A mere disturbance of law and order will not necessarily amount to a breach of public order. In Anuradha Bhasin, the Court explained the difference between the two terms by giving an illustration that a conflict between two families over irrigation water disturbs ‘law and order’ but a conflict between two communities over the same subject matter would disturb ‘public order’. 

What were the key legal principles and issues involved in Anuradha Bhasin v. Union of India?

The principal issue in the case was whether the right to carry on business or profession through the medium of internet is a fundamental right. The Court had to determine if there are any limitations on the power of the government to impose restrictions on access to the internet. 

What are the consequences of an internet shutdown?

An internet shutdown affects the freedom of speech and expression which is guaranteed under Article 19(1)(a). It also has economic consequences and disrupts businesses and trade activities which operate through the medium of the internet. Thus, it also affects the freedom to carry on trade, business and profession (guaranteed under Article 19(1)(g). Educational institutions using online platforms  also face difficulties. 

Reference 

• https://www.hpnlu.ac.in/PDF/b5afcb89-59fb-471c-ab46-444e83da53d9.pdf 
• https://internetfreedom.in/supreme-court-of-india-issues-notice-in-foundation-of-media-professionals-application-seeking-compliance-with-anuradha-bhasin-internet-shutdown-guidelines/#:~:text=Background,internet%20is%20a%20fundamental%20right. 
• https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/ 
• https://legalvidhiya.com/anuradha-bhasin-vs-union-of-india-air-2020-sc-1308/ 

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