CASE BRIEF

ANURADHA BHASIN VS. UNION OF INDIA , 2020

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.