Constitutional Law

Anuradha Bhasin v. Union of India

AIR 2020 SC 1308; (2020) 3 SCC 637

Facts

In August 2019, constitutional changes relating to Jammu and Kashmir were accompanied by extensive security measures.
Mobile services, landlines and internet services were suspended.
Restrictions were also imposed under Section 144 of the Code of Criminal Procedure.
Anuradha Bhasin, Executive Editor of the Kashmir Times, argued that the communication shutdown prevented publication and distribution of the newspaper.
Ghulam Nabi Azad separately challenged movement and communication restrictions.
The Government relied on national security, terrorism and the need to prevent violence.
Many suspension and Section 144 orders were not initially placed in the public domain.
The petitioners sought restoration of communication and disclosure of all restrictive orders.

Whether speech and business conducted through the internet are protected by Articles 19(1)(a) and 19(1)(g).
Whether internet services may be suspended indefinitely.
Whether shutdown orders must be published and subjected to proportionality review.
Whether Section 144 may be used to suppress legitimate expression or prevent anticipated disorder.

The internet is an important medium through which citizens exercise:
freedom of speech and expression; and
freedom of trade, occupation and business.
The Court did not declare an independent fundamental right to internet access.
Restrictions on internet-based activity must nevertheless satisfy Articles 19(2) or 19(6).
A restriction must:
have legal authority;
pursue a legitimate purpose;
be necessary;
be proportionate; and
use the least restrictive effective measure.
Indefinite internet suspension is impermissible.
Restrictive orders must be published so affected persons can challenge them.
Section 144 cannot be used to suppress lawful democratic activity.

The Court accepted that the Government faced serious security concerns.
It nevertheless rejected the suggestion that national security made restrictions immune from judicial review.
Because shutdown orders interfere with constitutional rights, courts must be able to examine:
their territorial scope;
duration;
reasons;
necessity; and
proportionality.
Secret orders prevent meaningful legal challenge and therefore violate the requirements of accountability and rule of law.
The authorities had to consider whether less restrictive measures—such as blocking particular services or websites—could address the danger.
A complete shutdown could be used only where necessary and not as an automatic response.
Suspension orders had to remain temporary and undergo periodic review under the applicable rules.
Section 144 could prevent genuine threats, but repeated or mechanical orders could not be used to avoid public protest or criticism.
The Court did not itself determine the validity of every order because all orders had not been produced before it.
Instead, it required their publication and immediate governmental review.