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Anuradha Bhasin v/s Union of India: A Socio-Legal Analysis

Jammu and Kashmir is an Indian area bordering Pakistan which has been the subject of decades of strife. According to Article 370 of the Indian Constitution, the region enjoyed special status and it had its own Constitution and it was not allowed to purchase land or property by Indian nationals from other countries.

"On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019,[1] which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made it fully subservient to all provisions of the Constitution of India".

In advance of the decision of the Union Government to issue president orders for the autonomy of Jammu and Kashmir, the district magistrate issued the order restricting the mobility and public gatherings and apprehending violations of peace and quiet pursuant to Section 144 of the Cr.P.C., a complete blocking of information and communications facilities. There have been a few limitations since then, but internet connectivity in the Kashmir Valley remains elusive. While landlines and after pay telephone calls now work, only a small proportion of the population in the area have access to these services. These services are now working.

Mobile telephone SMSs after payment remain prohibited and voice and prepayment SMS prepaid telephone calls are also blocked. Messaging services are essential for the conduct of many sorts of economic transactions, as is obvious. You are a crucial service in many ways. Of about 60 lakh mobile devices, barely 20 lakh devices work, and even SMS devices remain entirely prohibited. Moreover, Internet connection in the Cashmere Valley is still banned, despite the crucial role the web plays today in different sorts of commercial, social and educational activity.

In the case of the Anuradha Bhasin v. Union of India, the guidelines set by the Supreme Court serve as a reinforcement of the rights of Jammu and Kashmir inhabitants and promote the government's importance of due diligence. However, in the Internet blockade area, the Jammu and Kashmir people are not immediately relieved by the verdict. In this project, this will be explained in detail.

Legal Background
"Renowned scholar Nicola Lucchi in his eminent work The Role of Internet Access in Enabling Individual's Rights and Freedoms[2] has pointed out that the constitutional principle of freedom of expression has been formally expanded to include Internet access as part of freedom of speech".

The reason for this enlargement is that the right of each person to access the services of digital networks is an essential component of freedom to communicate and express themselves. Other rights can be negatively affected particularly by the inability to use Internet networks.

Although certain legal views acknowledge the freedom of connection to the Internet, this does not mean that access to the Internet is a fundamental right. Instead, the constitutional provision of free expression incorporates a constitutional guarantee of access to the Internet.

Unimpeded access to the Internet network infrastructure is a necessity for the successful practise of freedom of expression and access to information. "As a consequence, limitations on the use of the Internet to access information can only be imposed under strict conditions as well as it happens with limitations imposed on other forms of expression and communication".[3]

"Another eminent thinker Michael Karanicolas in his work A Truly World-Wide Web: Assessing the Internet from the Perspective of Human Rights[4] has highlighted the fact that access to the Internet is a human right which gives rise to a progressive obligation upon all States to promote it as such". States must make sure that their regulatory structure is fitted adequately to deal with concerns of online speech and, in the context of transparency, that any limitation on access to the Internet complies with the severe provisions on proportionality and necessity established by international law.

Severe limits, such as internet censorship or completely turning off users' access, should therefore generally be regarded as abuses of freedom of expression. Here, access to the Internet has become vital for the full realization in democratic countries of the right to freedom of expression and is a basic factor in encouraging the political expression that leads to democratization in others.

"In this respect, petitions were filed in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India,[5] wherein the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley". These petitions made arguments that addressed issues that were vital to the operation of the democracy in India.

The Supreme Court held that Internet access has become an essential part of everyday life and that therefore freedom of expression and freedom to practise any profession, business and trade via the Internet are fundamental rights under Part III of the Constitution. The Supreme Court held that Internet access is an important part of everyday life.

"In view of the above-mentioned ideals, this project seeks to analyze the judgment of the Supreme Court of India in the case of Anuradha Bhasin v. Union of India[6] which relates to the internet shutdown imposed in Jammu and Kashmir". In essence, in the subsequent stages of the project, a socio-legal study of the ruling will be conducted to determine if acts like a full ban on the Internet are or are not justifiable.

Arguments from the Side of the Petitioners
The petitioners argued that the orders of the internet shutdown authorities should be issued before the Court. As claimed by the State, it cannot be the object of privilege. It was argued that the state's behaviour during the production of documents and status reports was incorrect because of its inadequate scope for the petitioners to refute it. The disclosure of law is important to achieve natural justice. It was also submitted. The orders must therefore not only be publicised, but also made publicly available.

It was also said that there was no need for absolute internet restrictions and that a less restrictive approach might be used. Because of a number of restrictions placed on the press, the petitioner as chair of one of the largest newspapers, could not operate after 5 August 2019. Print media stopped because internet services were not available, which, she believes, is extremely crucial to the modern press. internet curtailment is the limit on freedom of expression and should therefore be examined on the basis of reasonableness and proportionality.

With the rightful enjoyment of the fundamental rights granted to it, the State should balance the security of its citizens. The petitioners claimed in this regard that such limitations effect not only on the right of persons to freedom of speech but also on their right to trade. Consequently, less restriction measures should, as was done in India in past years, have been used in line with prohibitions on human trafficking and children's pornographic web sites, such as blocking simply social networking sites such as Facebook and Whatsapp.

The petitioners believe that the Internet suspension order is effectively passed in order to cope with a situation in law and order. Nevertheless, no existing law and order concern or apprehension has been mentioned in the present circumstances. The order of the Magistrate, according to Section 144, Cr.P.C. cannot be handed on to the public and should be aimed at a specific individual or group that has been apprehended for peace. It was also pointed out. The government needs to identify the persons that cause the problem; the whole state cannot be stopped.

The petitioners also argued that travel and Internet limitations directly interfered in their daily reporting job; including the debate on the abrogation of Article 370. In conclusion, it was underlined that the restrictions which have been placed, which are meant to be transitory, extend more than 100 days.

Arguments from the Side of the Respondents
In response, it might be seen as being preventive in their character as to the security and protection of citizens by the order passed under Article 144 of Cr.P.C. It was also argued that the Order might be justified in the preservation of 'state safety' taking into of the agitation around the repeal of Article 370 and the violence which tarnished the history of Jammu and Cashmir.

In addition, when applied on the Internet, the case law on freedom of expression in relation to newspapers is different, since the two media are of distinct nature. Whilst journals only allow communication in one manner, the internet provides communication in two ways easy to convey messages. The respondents therefore argued that this often leads to the propagation of nasty and inaccurate messages that threaten the safety and serenity of the neighbourhood. At the same time as addressing the restrictions on the two media, the Court should keep this varied background in mind.

Regarding the identification of individual persons breaking the peace in the region, it was said that the troublemakers could almost not be separated from ordinary people and controlled. Further, the respondents argued that social media can be used as a means of inciting violence, which allows people to transmit messages and to communicate simultaneously with a number of individuals; hate messages could be dispatched in light of the recent abrogation of Article 370. The goal of limiting and restricting the use of the internet was therefore to ensure that targeted communications from outside the country would not exacerbate the situation on the ground.

The infringements also argued that the State is clearly prone to violence as well as physical as digital cross-violent terror given the historical and political background of the State of Jammu and Kashmir. The necessity of the decrees under Section 144, Cr.P.C. therefore has been validated notwithstanding the lack of evidence of real cases of law and order.

The Respondents submitted some numbers suggesting that the people lead their usual lives in the State. It was also alleged that every newspaper, TV and radio channel, even from Srinagar, where the petitioner is located, was functioning. It was also shown that the administration had taken effective action to ensure that the citizens have access to critical facilities.

Identification of Issues
A three judge bench consist of Judges NV Ramana, R Subhash Reddy and B R Gavai rendered judgments for Anuradha Bhasin v. Union of India.[7] The bench discovered five key problems. These were:
  • How can the government claim exemption from all orders made in accordance with Section 144, Cr.P.C and other orders under the Rule of Suspension?
  • Whether freedom of expression and freedom to pursue a trade, profession or company over the Internet is part of basic rights in Part III of the Constitution?
  • Whether the actions of the Government to ban internet access really valid?
  • Which limitations have been imposed in accordance with Section 144, Cr.P.C.?
  • Whether the petitioner's freedom of the press was broken by the limitations?
These issues were separately discussed in depth by the bench which will be discussed in the subsequent part.

Evidence and Reasoning
Issue I: Production of Orders
The Court noted that all directives issued by different agencies in Kashmir limiting the right for people to move and communicate with the petitioners and the Court had not been submitted to the respondents (the State). It highlighted that democracy involves free flow of information. There is no question about democracy. The Constitution not only provides for a normative expectation, but also requires that no law must be passed illegally. Therefore, the Supreme Court noted that the copies of each order must be provided by the Government, which constitute the most vital parts of the democracy to maintain openness and accountability.

The juges reaffirmed that all the information necessary to define properly their argument calling for fundamental rights was the right of petitioners. This right to access information, as declared by the Court, was an important aspect of the right in Article 19 to freedom of expression and speech. The Bench therefore ordered the Respondent State/all the competent authorities to publish all applicable orders, all future orders, and all telecom service suspensions, including Internet, in accordance with Section 144 of the Cr.P.C., in order that the effective person may appeal to it before any appropriate forum.

Issue II: Fundamental Rights under Part III and Restrictions thereof
The most detailed aspect of the judgement was the discussion on the nexus between the right to trade and employment and the access to the Internet. The investigation of the problem deeply covered the flow of case law of basic rights and the consequent justifiable constraints. The Court has noted that our rights have been fulfilled by the influx of technology. The law had therefore to imbue technological growth and consequently formulate its laws in order to meet the needs of society.

"The Court referred to its earlier judgments by which the freedom of print media and television were recognized part of the freedom of expression".[8] As an extension to the latter, the Court noted that Internet use was part, equivalently governed by reasonable constraints, of the right to freedom of speech and expression and trade and trade. The court, however, did not decide on whether internet access alone was a basic right.

In its exposition of jurisprudence concerning the degree to which freedom of speech and freedom of expression could be limited, the Court decided that constitutional protection only applies in speeches that may provoke imminent violence. The next question then was to what extent freedom of speech might be regulated and how proportionality between freedom of expression and national security could be tested. The notion of proportionality was held to equalise the resources with the purpose.

The Court noted that the purpose of any such restricted restriction must be established at the first stage itself. This objective must be a reasonable objective. The authorities must, however, inquire before implementing the above step if an other mechanism is available to attain the legitimate objective. In the light of the facts and circumstances of each instance, it is important that the State select the least restrictive mechanism. The orders must be substantiated with adequate material to which the fundamental rights of the affected parties are confined and subject to judicial review.

Issue III: Internet Shutdown
After clarifying the substantive legislation concerning internet restrictions, the judgement further clarified the procedural side of these laws. It was observed that the State has been restraining telecoms services including internet access by using the suspension regulations in accordance with Section7 of the Telegraph Act since 2017. The mechanism for limiting these services is set out in Rule 2 of the Suspension Rules. The rule specifies thoroughly the appropriate procedure for the issuance of suspension orders by the list of responsible authorities.

The Court ordered that all orders record the necessity and the reasons for such action. "Hence, every order must satisfy the test of proportionality.[9] Such order must further be sent to the review committee within one day". Such orders cannot be made until careful considerations and application of mind are considered, and when the need for circumstances is proportionate to the restriction in cases of serious public emergency. To make them available for judicial scrutiny, all such orders issued must be published.

The Court noted that the regulations on the suspension contained gaps, and that the Legislature had to examine those provisions. The Court ordered that these orders be reviewed every seven working days, until certain lacunes had been met. In addition, the Court has directed the revision in accordance with Rule 2(5) of the 2017 Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules of Procedure, which have been reported under the Telegraph Act of the Evaluate Committee to review all Internet suspension order.

Therefore, if an order is not in line with the law provided for in this judgement, it is ordered by the Court that it should be cancelled and that the law provided for in this judgement should be complied with further, if there is a requirement for fresh orders. In any case, in areas where the internet services are not expected to be restored immediately, the State/subject authorities must promptly consider permission for government websites, localised or limited e-banking facilities, medical services and other key services.

Issue IV: Restrictions under Section 144 of Cr.P.C.
Article 144 of the Cr.P.C. allows the State, in order to address immediate risks to public peace, to adopt preventive measures. It makes it possible for the magistrate to issue a mandatory order ordering specific activities or prohibiting citizens from performing certain things. The Court maintained, however, that the Section has the requisite protections to avoid arbitrary application.

"Referring to the earlier judgment in Babulal Parate v. State of Bombay,[10] the Court stressed on the need for application of mind and enquiry into the existence of any imminent threat". The Court held that the orders of the judge must reflect the material facts according to which such orders are passed so that the parties concerned leave their scope for judicial review.

All of those affected by such orders should be published or notified, and such orders cannot be placed indefinitely. Importantly, it is an abuse of power that the Court said the frequent passing of those orders. The orders must be checked regularly and cancelled or changed as necessary.

Issue V: Freedom of the Press
"The judgment reiterated that a free press was a sacred right within the right to free speech and expression".[11] "In context of the Petitioner's argument that the restrictions on internet and mobile services caused hindrance to their press freedom, the Court discussed the doctrine of the chilling effect and its jurisprudence in India and the US".[12]

The idea of chilling effect says that, essentially, government legislation and activity have the effects of self-censorship, even if it does not suppress freedom of expression explicitly. But the Court had no more reference to the topic except for the government Directive, since the Petitioner resumed the publication, that the Court must respect freedom of the press at all time. There can be no basis for indefinitely restricting press freedom.

Findings of the Case and Ratio Decidendi
The Court issued the following guidelines which constitute the ratio of the case:
  1. In order to properly challenge the respondents before the appropriate venue, the bench instructed the respondents to publish every decree on limits, including prohibitions on the Internet.
  2. Article 19(1)(a) and Article 19(1)(g) of the Constitution protect the freedom of expression and freedom to perform or conduct any profession, trade or business on the Internet; if they are restricted, they should be carried out under an adjustment test.
  3. Although the government is able to suspend the internet access legally, it must do it temporarily. The government was therefore instructed to review its suspension orders and to revoke those that were not temporary.
  4. Under Section 144, the restrictions Cr.P.C. shall not be utilised to repress legitimate discontent and shall be subject to judicial investigation. The State was therefore instructed to examine its decisions.
  5. The judgement held that although the petitioner could not present sufficient evidence of a direct effect of the restrictions on the press, the indirect consequences for freedom of the press had undoubtedly been chilling. The Court stressed the importance of press freedom in democracy and called on the respondents at all times to uphold it.

Sociological Implications and Dimensions
"It may be noted that from 2017-2018, as per a UNESCO report, India experienced the maximum number of internet shutdowns in the world".[13] Kashmir is the longest Internet restriction in any democracy on the world, with more than five months of internet blocking. In the context of restoring the basic right to freedom of expression, speech and assembly in India in particular, the judgement is extremely pertinent.

The shutdown has seriously harmed the surrounding economy, creating job losses and disturbing people's lives. Many Kashmiris had their families cut off. The hardest affected were businesses and students. The Internet kiosks set up by deputy commissioners from various districts and some educational institutions were frequent visits by hundreds of students aspiring for competitive exams. Even ordinary bank operations were badly hit and individuals would pay utility bills to visit their respective branches online.

Months later, phone services were gradually restored. In addition, 2G mobile website was made available in the region following an internet cut review orders from the Supreme Court. "However, only government-approved websites have been made accessible and no social media is permitted".[14] Although the verdict is a defence of people's rights, their lives are far from normal.

"The major reason is access to only a limited number of online sites and slow or insufficient internet connection. In addition, though the government has restored the landlines and postpaid telephony, lakhs of mobile subscriptions are still suspended".[15] This affects people's life, because there is nothing that can overemphasize the function of the internet in the present world.

Critical Analysis
At the most fundamental level, the ruling sustains the demand for natural justice by affirming that executive or administrative authorities are entitled to access this order. As others have accurately pointed out, the State has repeatedly relied upon inaccessible and unpublished decrees and documents to defend its conduct, including in this case, in Kashmir.

The Supreme Tribunal has removed that mechanism from the State to frustrate or abridge rights by both requiring the State to proactively place orders in written procedures and demanding the disclosure of orders under the Internet rules and orders passed pursuant to Section 144. For those who struggle with the shortening of civil rights, this is a big victory: state officials cannot count on secrecy to issue arbitrary decrees.

In that instance, the Supreme Court affirmed that the power of Section 144 Cr.P.C. could not be employed to abolish lawful opinion, complaints, or the practice of democratic rights. The judge must pass these orders in order to satisfy the standard of proportionality. This is when Section 144 is utilized daily to crush peaceful protestors and student activities. This is the direction of the Supreme Court. It is not simply a reminder that the authorities and the government must maintain due process, but it is a new hope that the independence of the Apex Court is preserved and that it is prepared to safeguard constitutionalism in India.

Furthermore, in this decision the Supreme Court has indeed given down some key recommendations for the future government. It held that Internet orders in Kashmir were cancelled since it was improbable that the orders issued by the State authorities could have complied with the decision. If the orders are not revoked, the order must be published and proof must be given that it complies with the law established by the Court. Otherwise, there is a risk of disregarding the present judgement by the authorities.

However, the judgement contains fundamental issues. The people of Jammu and Kashmir are no immediate relief since the directives were not reversed. In addition, the bench made it plain that the right to access the Internet is a constitutional right which may be revised or altered, and that it cannot replace or amend the fundamental rights set out in Part III of the Constitution.

The verdict therefore does not challenge the government's right, but how far the government can shut down the Internet. This demonstrates that the court has not violated government authorities and strived to balance safety with human rights. The judgement deemed the government unquestionably responsible for the arbitrary Internet cutoff. It has established key rules that need to be followed in the future. For the people of Jammu and Kashmir, this is a vital milestone.

Conclusion
This gradual actions of the highest court in a country that has the most internet shutdowns in the world may not be sufficient. Although it does not give the Jammu and Kashmir people quick respite, it is a little forward in ensuring transparency, proportionality and accountability of Internet shutdowns across India. His restricted thinking will be based on something for Internet shutdowns in India in future issues. The administration will hopefully comply with the Anuradha Bhasin v. India principles and will confine the limitation to locations where there is a true security threat when a fresh order is issued.

Although the setting and facts of the ruling are related to what is going on in Kashmir, the Court's observations are quite relevant and are a critical reminder for the whole of India of due process and constitutionalism. The verdict refreshes the Supreme Court' s affirmation that due process and accountability must be re-established in the country.

The government and all other authorities are strongly reminded that constitutionalism requires reasonability for each of its actions. Arbitrary force usage and fundamental rights limitation cannot continue in contravention of the rule of law.

End-Notes:
  1. Constitution (Application to Jammu and Kashmir) Order, 2019, published in The Gazette of India on 5th August, 2019.
  2. Nicola Lucchi, The Role of Internet Access in Enabling Individual's Rights and Freedoms, RSCAS 2013/47.
  3. Ibid.
  4. Michael Karanicolas, A Truly World-Wide Web: Assessing the Internet from the Perspective of Human Rights, CLD (2012).
  5. WP (C) 1031/2019.
  6. WP (C) 1031/2019.
  7. WP (C) 1031/2019.
  8. Secretary, Ministry of Information and Broadcasting, GoI v. Cricket Association of Bengal, (1995) 2 SCC 161; Shreya Singhal v. Union of India, (2015) 5 SCC 1; Indian Express v. Union of India, (1985)1 SCC 641; Odyssey Comunications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410.
  9. Justice K.S.Puttaswamy (Retd) v. Union Of India, WP (C) 494/2012.
  10. AIR 1960 SC 51.
  11. Channing Arnold v. The Emperor, (1914) 16 Bom LR 544; Bennett Coleman v. Union of India, (1972) 2 SCC 788; Indian Express v. Union of India, (1985) 1 SCC 641; Sakal Papers (P) v. Union of India, (1962) 3 SCR 842.
  12. Weimann v. Updgraff, 344 U.S. 183; Justice K.S.Puttaswamy (Retd) v. Union Of India And Ors, WP (C) 494/2012
  13. Clampdowns and Courage-South Asia Press Freedom Report 2017-18, UNESCO-International Federation of Journalists
  14. Arun Sharma, J&K: Social media ban to continue; 481 websites on whitelist, The Indian Express, February 7, 2020, available at <https://indianexpress.com/article/india/jk-internet-restoration-social-media-whitlisted-websites-6256586/>.
  15. Mobile Internet Suspended in Kashmir, The Hindu, 6th May, 2020, available at <https://www.thehindu.com/news/national/other-states/mobile-internet-suspended-in-kashmir-as-top-hizb-commander-riaz-naikoo-trapped-in-encounter/article31515428.ece>.

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