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Anuradha basin v. Union of India (2020 SCC OnLine SC 25)

Updated: Dec 8, 2020

CASE


Anuradha basin v. Union of India


CITATION


2020 SCC OnLine SC 25


CORAM


Supreme Court of India

Full bench: Justice NV Ramana, Justice R Subhash Reddy and Justice BR Gavai, JJ



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POINT OF CONSIDERATION


Access to internet and free speech is a fundamental rights under article 19(1)(a) and 19(1)(g) of the Indian Constitution.


FACTS

  1. Security advisory issues by the Civil secretariat, Home Department, Government of Jammu and Kashmir, advising the tourist and the Amarnath Yatris to curtail their stay and make arrangement for their return in the interest of safety and security.

  2. Educational Institution and offices were ordered to remain shut until further notices

  3. 04.08.2019 – Mobile phone network, internet services, landline connectivity were all discontinued in the valley, with restrictions on movements also being imposed in some areas.

  4. 05.08.2019 – Constitutional order 272 was issued by the president, applying all provisions of the Constitution of India to the state of Jammy and Kashmir and modifying Article 3667 (interpretation) in its application to the State of Jammu and Kashmir.

  5. The District Magistrate, on the same day, imposed restriction on movement and public gathering by virtue of power vested under section 144 CrPC.

  6. Aggrieved by the State, Ms Anuradha Basin and Mr Ghulam Nabi Azad (Petitioners), approached the Court under article 32 seeking issuance of an appropriate writ for setting aside or quashing the order issued by the authorities under which mobile and telecommunication services have been shut/suspended/made inaccessible.


ISSUES RAISED & RATIO


  • Whether the Government can claim exemption from producing all the orders passed under section 144 CrPC and other order under the suspension rules?

- In the present case, while the respondents initially claimed privileges, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before the Court.

- The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.

- The Court held that it is not a valid ground to refuse the production of order before the court and the state should take a proactive approach in ensuring that all the relevant order be placed before the court, unless there is some specific ground of privilege or countervailing public interest to be balanced.


  • Whether the freedom of speech and expression and freedom to practise any profession or to carry on any trade, occupation or business over internet is a part of fundamental Rights under Part III of the constitution?

- Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.

- Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).


  • Whether the Government’s action of prohibiting internet access is valid?

- The complete broad suspension of telecom services, be it on internet or otherwise, being a drastic measure, must be considered by State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the state must assess the existence of an alternate less intrusive remedy.

- An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.


  • Whether the imposition of restriction under section 144 CrPC were valid?

- Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.


  • Whether the freedom of press of the Petitioner was violated due to restrictions?

- When the petitioner argued before the Court that she was not able to publish her newspaper Kashmir Times from 06­.08.­2019 to 11.0­.2019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

- However, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.


IMPORTANT CASES REFERRED

  1. Ram Jethmalani v. Union of India, (2011) 8 SCC 1

  2. Sectary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

  3. Shreya Singhal v. Union of India, (2015) 5 SCC 1

  4. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353

  5. K S Puttaswamy v. Union of India, (2019) 1 SCC 1

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