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Anuradha Bhasin - Case Summary - LLS

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Anuradha Bhasin - Case Summary - LLS

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jhanvi
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ANURADHA BHASIN V. UNION OF INDIA ON 10 JANUARY, 2020 | AUTHOR: N.V.

RAMANA

It was the best of times, it was the worst of times, it was the age of wisdom, it
was the age of foolishness, it was the epoch of belief, it was the epoch of
incredulity, it was the season of Light, it was the season of Darkness, it was the
spring of hope, it was the winter of despair, we had everything before us, we had
nothing before us, we were all going direct to Heaven, we were all going direct
the other way in short, the period was so far like the present period, that some
of its noisiest authorities insisted on its being received, for good or for evil, in the
superlative degree of comparison only.” Charles Dickens in A Tale of Two Cities

1. Our limited scope is to strike a balance between the liberty and security
concerns so that the right to life is secured and enjoyed in the best
possible manner.
2. The genesis of the issue starts with the Security Advisory issued by the
Civil Secretariat, Home Department, Government of Jammu and Kashmir,
advising the tourists and the Amarnath Yatris to curtail their stay and
make arrangements for their return in the interest of safety and security.
Subsequently, educational institutions and offices were ordered to remain
shut until further orders. On 04.08.2019, mobile phone networks, internet
services, landline connectivity were all discontinued in the valley, with
restrictions on movement also being imposed in some areas.
3. However, we are here only to ensure that citizens are provided all the
rights and liberty to the highest extent in a given situation while ensuring
security at the same time.
4. Liberty and security have always been at loggerheads. The question
before us, simply put, is what do we need more, liberty or security?

ISSUES:

i. Whether the Government can claim exemption from producing all


the orders passed under Section 144, Cr.P.C. and other orders
under the Suspension Rules?
ii. Whether the freedom of speech and expression and freedom to
practise any profession, or to carry on any occupation, trade or
business over the Internet is a part of the fundamental rights under
Part III of the Constitution?
iii. Whether the Government’s action of prohibiting internet access is
valid?
iv. Whether the imposition of restrictions under Section 144, Cr.P.C.
were valid?
v. Whether the freedom of press of the Petitioner in W.P. (C) No. 1031
of 2019 was violated due to the restrictions?
5. At this point it is important to note the argument of Mr. Vinton G. Cerf, one
of the ‘fathers of the internet’. He argued that while the internet is very
important, however, it cannot be elevated to the status of a human right.2
Technology, in his view, is an enabler of rights and not a right in and of
itself. He distinguishes 2 Vinton G. Cerf, Internet Access is not a Human
Right, The New York Times (January 04, 2012).
6. We need to distinguish between the internet as a tool and the freedom of
expression through the internet.
7. In this context, we need to note that the internet is also a very important
tool for trade and commerce. The globalization of the Indian economy and
the rapid advances in information and technology have opened up vast
business avenues and transformed India as a global IT hub. There is no
doubt that there are certain trades which are completely dependent on
the internet. 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).
8. None of the counsels have argued for declaring the right to access the
internet as a fundamental right and therefore we are not expressing any
view on the same. We are confining ourselves to declaring that the right to
freedom of speech and expression under Article 19(1)(a), and the right to
carry on any trade or business under 19(1)(g), using the medium of
internet is constitutionally protected.
9. The second prong of the test, wherein this Court is required to find
whether the imposed restriction/prohibition was least intrusive, brings us
to the question of balancing and proportionality. These concepts are not a
new formulation under the Constitution. In various parts of the
Constitution, this Court has taken a balancing approach to harmonize two
competing rights. In the case of Minerva Mills Ltd. v. Union of India, (1980)
2 SCC 591 and Sanjeev Coke Manufacturing Company v. M/s Bharat Coking
Coal Ltd., (1983) 1 SCC 147, this Court has already applied the balancing
approach with respect to fundamental rights and the directive principles of
State Policy.
10. Modern terrorism heavily relies on the internet. Operations on the
internet do not require substantial expenditure and are not traceable
easily. The internet is being used to support fallacious proxy wars by
raising money, recruiting and spreading propaganda/ideologies. The
prevalence of the internet provides an easy inroad to young
impressionable minds.
11. The doctrine of proportionality is not foreign to the Indian
Constitution, considering the use of the word ‘reasonable’ under Article 19
of the Constitution. In a catena of judgments, this Court has held
“reasonable restrictions” are indispensable for the realisation of freedoms
enshrined under Article 19, as they are what ensure that enjoyment of
rights is not arbitrary or excessive, so as to affect public interest. This
Court, while sitting 9R. Alexy, A Theory of Constitutional Rights (Oxford,
Oxford University Press, 2002). 10Ibid at page 47.

12. We direct the respondent State/competent authorities to review all


orders suspending internet services forthwith. h. Orders not in accordance
with the law laid down above, must be revoked. Further, in future, if there
is a necessity to pass fresh orders, the law laid down herein must be
followed.
13. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites, localized/limited e-
banking facilities, hospitals services and other essential services, in those
regions, wherein the internet services are not likely to be restored
immediately. j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists present
danger, but also when there is an apprehension of danger. However, the
danger contemplated should be in the nature of an “emergency” and for
the purpose of preventing obstruction and annoyance or injury to any
person lawfully employed.

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