JAMIA MILLIA ISLAMIA

FACULTY OF LAW

CASE ANALYSIS OF ANURADHA BHASIN v. UOI AIR 2020 SC 1308

CLINICAL COURSE III- ASSIGNMENT

Submitted by

Shayan Zafar

20182859

Roll No.:58

th
B.A.LLB (Hons.) (IX Semester) (Regular)

Batch: 2018-2023

Submitted to

Prof. Dr. Mohd. Asad Malik Sir

Professor
 ACKNOWLEDGEMENT

The success and final outcome of this case analysis required a lot of guidance and assistance
from many people and I am extremely fortunate to have got this along the completion of my case
analysis. Whatever I have done is only due to such guidance and assistance and I could not forget
to thank them. I respect and thank Prof. Dr. Mohd Asad Malik Sir, my Clinical Course-III
teacher for giving me an opportunity to do this case analysis and providing me all support and
guidance which made me complete this case analysis on time. I am extremely grateful to him for
providing such a nice support and guidance in this pandemic situation. Thank you Sir for your
support without your help and guidance it was impossible to bring up this case analysis.

----SHAYAN ZAFAR
 INDEX

S.No CONTENTS

01. INTRODUCTION

03. FACTS OF THE CASE

04. ISSUE RAISED

05. IMPORTANT CONTENTIONS

 CONTENTIONS ON BEHALF OF PETITIONERS

 CONTENTIONS ON BEHALF OF RESPONDENT

06. ANALYSIS OF THE JUDGMENT

07. CONCLUSION
INTRODUCTION

This recent judgement was decided by a three judge bench of the Hon’ble Supreme Court of
India in which question arose as to the essentiality of internet for the smooth functioning of
media. This case arose in the midst of the abrogation of Article 370 which resulted in the
revocation of the special status of Jammu and Kashmir. The case argued on the internet
shutdown and movement restrictions imposed over the territory of Jammu and Kashmir on 4th
August, 2019. The restrictions were imposed under the name of maintaining the public order.
The Court ordered the Government to assess the impositions by conducting the test of necessity
and proportionality and should act accordingly to that. The decision of the Court was questioned
on the basis of curtailing the freedom of speech of the press and media and also on the basis of
Court’s ignorance on the indefinite restriction of internet services and movement of press
personnel.

The issues of the case arise with the Security Advisory issued by the Civil Secretariat, Home
Department, Government of Jammu and Kashmir on 2nd August, 2019 advised the tourists and
the Amarnath Yatris to shorten their stays and to make arrangements for return so as to maintain
their safety and security. Further, an order was released stating that all educational institutions
and offices were to remain closed until any further orders are received. On 4th August, 2019, the
internet services, mobile networks and landline connectivity was discontinued. The President, on
5th August, 2019, issued Constitutional Order 272 which led to revocation of Article 370 and
resulted in the applicability of all Constitutional Provisions of India to the state of Jammu and
Kashmir. The District Magistrate further imposed restrictions on movement and public assembly
under the authority of Section 144 of Code of Criminal Procedure, 1973. So this case was
brought under Writ Petitions by Ms. Anuradha Bhasin who was the editor of the Kashmir Times
Srinagar Edition and Mr. Ghulam Nabi Azad who is the former Leader of Opposition in Rajya
Sabha.
FACTS OF THE CASE

The genesis of the issue starts with the suspension of mobile, landline and internet services in the
state of Jammu and Kashmir (hereinafter ‘J&K’) on August 4, 2019 along with restrictions on
movement in certain areas. On August 5, 2019, Indian government issued Constitutional Order
272 i.e. Constitution (Application of Jammu and Kashmir) Order, 2019 by virtue of which
special category status of J&K was revoked. In light of these circumstances Section 144 was
imposed on the apprehension of breach of peace and tranquility in the state. The petitioner Ms.
Anuradha Bhasin, the executive editor of Kashmir Time challenged the internet shutdown and
movement restrictions (hereafter ‘restrictions’) for being voilative for right to freedom of press
and profession enshrined under Article 19 of the Indian Constitution.

A similar petition was filed by Ghulam Nabi Azad seeking issuance of an appropriate writ to set
aside or quash any orders, notifications, directions or circulars issued by the Government under
which all/any modes of communication have been shut down. Furthermore, petitioners sought to
issue an appropriate writ directing respondents to immediately restore all modes of
communication in order to provide an enabling environment for the media to practice their
profession by taking necessary steps for ensuring their free and safe movement of reporters and
journalists to so they can exercise their right to freedom of speech and expression and right to
movement. The two petitions were combined and the matter was listed for the final disposal after
hearing counsels and interveners from both the sides and taking into due consideration the
submissions and documents placed before the court.
 ISSUES RAISED

ISSUE I:

 Whether the orders passed under Section 144, CrPC and the Suspension Rules can be
exempted from being produced by the Government?

ISSUE 2:
 Whether the freedom of expression as well as freedom of trade and commerce over the
Internet could be included within the purview of fundamental rights guaranteed under Part III
of the Constitution?

ISSUE 3:

 Whether the act of prohibition of internet access by the Government is valid?

ISSUE 4:

 Whether there was legitimate imposition of restrictions under Section 144 of the CrPC?

ISSUE 5:

 Whether the restrictions imposed curbed the freedom of press of the Petitioner?
IMPORTANT CONTENTIONS:

 CONTENTIONS ON BEHALF OF PETITIONERS(Represented by Ms. Vrinda

Goyal, Senior Counsel Mr. Kapil Sibbal)

i. The restrictions do not satisfy the test of ‘reasonableness and proportionality’ to the aim
pursued by them.
ii. The restrictions imposed by virtue of Section 144 were passed on the apprehension that
there is an imminent threat to law and order situation in the valley which was not the case
as public order is not same as law and order and neither were at risk.
iii. The State’s order of restricting internet services under the Suspension rules was not in
compliance with the requisite procedure, implying the absolute non- application of mind.
iv. The restrictions are overbroad and excessive in nature as the state failed to put least
restrictive measures in place which deprive people from the lawful exercise of their
fundamental rights

 CONTENTION ON BEHALF OF RESPONDENT (Represented by Mr. K.K

Venugopal, Learned Attorney General of India and Mr. Tushar Mehta, Solicitor General
for the State of Jammu and Kashmir.)

i. The restrictions were ‘necessary’ to prevent terrorist activities, taking into consideration
the situation regarding cross- border terrorism and internal militancy. Even before Article
370 was revoked it was a subject of speculation.
ii. Since the issue of national security is at stake, courts have limited jurisdictions to
question the judgment of the officers in imposing pre-emptive measures.
iii. There was never a blanket ban on internet services as internet services were not restricted
in regions like Jammu and Ladakh.
iv. The effects of the restrictions have been exaggerated by the petitioners as the individual
movement had never been restricted and were imposed only in certain areas which were
relaxed soon after.
v. The free speech standards related to the newspapers are not very distinct from those of
internet and hence it is not possible to ban only certain websites or parts of internet while
allowing access to others.
ANALYSIS OF THE JUDGMENT

The Supreme Court stated that its objective is to maintain a balance between the liberty and
security so as to secure and enjoy the right to life in the best possible manner rather than looking
at the political propriety of the decision. The petitioners claimed that the required orders were not
available to them and thus could not be produced before the Court. The Respondents also
accepted the fact of non-availability of orders. The Court noted that the non-availability of orders
made it difficult to decide the validity of the decision. The Court cited the precedent of Ram
Jethmalani v. Union of India, where it was stated that the petitioners cannot be denied the
necessary information they seek and the State is obliged to disclose information in order to avail
the right to remedy given under Article 32 of the Constitution.

The Court also clarified that right to freedom of expression guaranteed under Article 19 of the
Indian Constitution can be extended to include right to freedom of print media. Court
emphasized that online expression is an essential element of freedom of speech and expression
under Article 19(1)(a) and the business and trade in which internet and online services are
essential for functioning comes under authority of Article(1)(g). These freedoms can be
restricted under Article 19(2) and 19(6) respectively. Looking upon Article 19(2), the Court
decided that complete restrictions can be put on freedom of speech and expression but it has to
be proved that other lesser alternatives cannot suffice the needs. The Court ensured that the
restriction must not be beyond what is necessary. The petitioners also put forward that ‘law and
order’ has a narrow ambit than ‘public order’ the invocation of Section 144 can justify the issue
of ‘public order’ also. In Ram Manohar Lohia v. State of Bihar, it was held that mere disturbance
in law and order does not necessarily leads to disturbance in public order.

The Court highlighted that it is important to look both substantive and procedural mechanism to
determine the constitutional validity of the internet shutdown imposed in the region of Jammu
and Kashmir. Suspension Rules under Section 7 of the Telegraph Act passed in 2017 gave
permission to the Government to restrict telecom and internet services keeping in view certain
safeguards. Section 5(2) of the Telegraph Act states that the restrictions can be imposed only in
case of public emergency or in the interest of public safety and proper evidence has to be shown
regarding the necessity of the restriction. The Court stated that “complete broad suspension of
telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by
the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess
the existence of an alternate less intrusive remedy.”

Addressing the issues regarding the application of Section 144 of Cr.P.C., the Court observed
that Section 144 can be imposed not only in the cases of present danger but also in cases of
apprehension of danger. It is a preventive action against possible future violence and
disturbances to public order and safety. But indefinite restriction under Section 144 is
unconstitutional. It should be imposed only for a necessary period and cannot be used in a
repetitive manner. The Court noted that the petitioners failed to prove the restrictions and
difficulties in publishing newspapers. The Apex Court referred to the case of Channing Arnold v.
The Emperor, where it was stated that “the freedom of the journalist is an ordinary part of the
freedom of the subject and to whatever length, the subject in general may go, so also may the
journalist, but apart from the statute law his privilege is no other and no higher. The range of his
assertions, his criticisms or his comments is as wide as, and no wider than that of any other
subject.”
CONCLUSION

The Hon’ble Supreme Court in this judgement found that freedom of online expression and
freedom to practice any profession through online means is protected by the Indian Constitution.
The Court denied to lift the restrictions and left it into the discretion of the State to review it and
remove the unnecessary impositions. The Court also ordered the restrictions to be of a temporary
nature. This case widened the scope of Section 144 of Cr.P.C. by applying its use even in the
cases where there is apprehension of danger. This case also made observations regarding the
illegitimate use of Section 144 and its prohibition as it will lead to abuse of power of the State.
But, the Court also stated that a responsible government should always take care of all the rights
and needs of press and media and provide them protection in their freedom of speech. This case
will always act as a precedent in cases where rights of media and freedom of press will be the
issue for arguments.

The judgements also faced criticisms. The Court could have put strict orders on the State to
immediately review their restrictions imposed rather than again giving the discretion to the State.
Press and Media is considered as the fourth pillar of democracy. It should be free from
restrictions which curtail its power to work effectively and efficiently. The State should keep in
view that media is the source of information for the public and curtailing its expression and
communication can lead to stoppage of information to the public. The media should also work in
a view not to harm the dignity of the State, refrain from spreading biased views and it should
maintain and respect the ideals, values and sentiments of the society. Media should not be driven
by the profit-earning concept rather than it should stick towards working for society’s welfare
through providing people the accurate and adequate news without taking sides. This case may be
challenged in future for the recognition of the freedom of expression, movement and
communication of press and media and then all will look forward to more clear recognition of
press rights. The Hon’ble Supreme Court may then give strict rules to the government so that the
government is not at a dominating position and unreasonable restrictions should not degrade the
quality of press and media in sharing vital information with the public.