ANURADHA BHASIN v. UNION OF INDIA & ORS.

p. 902

A Executive Editor of the newspaper “Kashmir Times”, which publishes two editions daily, one from Jammu and another from Srinagar. The English newspaper, Kashmir Times, was founded in 1954 as a news weekly. It was later converted to a daily newspaper in 1962 and has regularly been in print and circulation ever since. Kashmir Times is a widely read English newspaper in B Jammu and Kashmir, and also has significant readership in the neighbouring States of Punjab, Delhi and Himachal Pradesh.

14. On 04-08-2019, sometime during the day, mobile phone networks, internet services, and landline phones were all discontinued in the Kashmir valley and in some districts of Jammu C and Ladakh. No formal orders under which such action was taken by the Respondents were communicated to the affected population, including the residents of the Kashmir Valley. This meant that the people of Kashmir were plunged into a communication blackhole and an information blackout. The actions of the respondents have had a debilitating and crippling effect on newsgathering, reporting, publication, circulation and information dissemination, and have also resulted in freezing of web portals and news websites.

15. From the morning of 05-08-2019, with a heavy military presence, barricades and severance of all communication links, the state of Jammu and Kashmir was placed under de facto curfew. At the same time, on 05-08-2019, the Constitution (Application to Jammu and Kashmir) order, 2019, C.O. 272 was published in The Gazette of India, vide which under the powers vested by Article 370(1) of the Constitution of India, Article 367(4) was added to the Constitution. Also on 05-08-2019, the Jammu F and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06-08-2019, the said Bill was passed by the Lok Sabha. The President’s assent was given to the Bill on 09-08-2019. The Gazette Notification, dt. 09-08-2019 states that the Jammu and Kashmir Reorganisation Act, 2019, will come into effect from 31st October, 2019, and that there shall be a new Union Territory of Jammu and Kashmir. All of this was carried out while the State of Jammu and Kashmir was in a lockdown and silenced through a communication shutdown.

16. In such Circumstances the Kashmir Times’ Srinagar edition could not be distributed on 05-08-2019 and it could not be published

ANURADHA BHASIN v. UNION OF INDIA & ORS. 903 [N. V. RAMANA, J.]

thereafter from 06-08-2019 to 11-10-2019, as newspaper publication necessarily requires news gathering by reporters traveling across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdown-including communication and internet blackout- and severe curbs on movement enforced by the respondents, the Petitioner was prevented and hindered from carrying out her profession and work. Even after 11-10-2019 only a truncated copy of the newspaper is being published because of the severe restrictions in place even today (internet services and SMS services are completely shut down even after 115 days). The new portal/website is frozen till date. C

142. There is no doubt that the importance of the press is well established under Indian Law. The freedom of the press is a requirement in any democratic society for its effective functioning. The first case which dealt with the freedom of the press can be traced back to Channing Arnold v. The Emperor, (1914) 16 Bom LR 544, wherein the Privy D Council stated that: “36. The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”

143. During the drafting of our Constitution, B. N. Rau, while commenting on the amendments by Jaya Prakash Narayan, who had proposed a separate freedom of press, had commented in the following manner: “It is hardly necessary to provide specifically for the freedom of the press as freedom of expression provided in sub-clause (a) of clause (1) of article 13 will include freedom of the press...”

144. Thereafter, many judgments of this Court including Bennett G Coleman v. Union of India, (1972) 2 SCC 788, Indian Express (supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842 have expounded on the right of freedom of press and have clearly enunciated the importance of the aforesaid rights in modern society. In view of the same, there is no doubt that freedom of the press needs to H be considered herein while dealing with the issue of the case at hand.

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A 145. From the aforesaid factual averment, we may note that the Petitioner in W.P. (C) No. 1031 of 2019, with respect to the present issue, does not impugn any specific order of the government restricting the freedom of the press or restricting the content of the press. The allegation of the aforementioned Petitioner is that the cumulative effect of various other restrictions, such as the imposition of Section 144, Cr.P.C. B and restriction on internet and communication, has indirectly affected the freedom of the press in the valley.

146. There is no doubt that the freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there C cannot be transfer of information or requisite discussion for a democratic society. Squarely however, the contention of the Petitioner restson the chilling effects alleged to be produced by the imposition of restrictions as discussed above.

147. Chilling effect has been utilized in Indian Jurisprudence as a D fairly recent concept. Its presence in the United States of America can be traced to the decision in Weiman v. Updgraff, 344 U.S. 183. We may note that the argument of chilling effect has been utilized in various contexts, from being purely an emotive argument to a substantive component under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be constitutional, but which imposes a great burden on the free speech. We may note that the argument of chilling effect, if not tempered judicially, would result in a “self-proclaiming instrument”.

148. The principle of chilling effect was utilized initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment.22 This analysis was replicated in the context of privacy and internet usage in a regulatory set up by Daniel G J. Solove. Thesepanopticon concerns have been accepted in the case of K.S. Puttaswamy (Privacy-9J.) (supra).

149. We need to concern ourselves herein as to theoretical question of drawing lines as to when a regulation stops short of impinging upon 22 Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling H Effect (1978).

ANURADHA BHASIN v. UNION OF INDIA & ORS. 905 [N. V. RAMANA, J.]

free speech. A regulatory legislation will have a direct or indirect impact A on various rights of different degrees. Individual rights cannot be viewed as silos, rather they should be viewed in a cumulative manner which may be affected in different ways. The technical rule of causal link cannot be made applicable in the case of human rights. Human rights are an inherent feature of every human and there is no question of the B State not providing for these rights. In one sense, the restrictions provided under Article 19(2) of the Constitution follow a utilitarian approach wherein individualism gives way for commonality of benefit, if such restrictions are required and demanded by law. In this context, the test of ‘direct impact’ as laid down in A.K Gopalan v. State of Madras, AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee C Cooper v. Union of India, 1970 (1) SCC 248, wherein the test of ‘direct and inevitable consequence’ was propounded. As this is not a case wherein a detailed analysis of chilling effectis required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect. D

150. The widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism. At this juncture, we may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority E decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that: “Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” F

Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the G present case. [refer to Clapper v Amnesty Int’l, USA, 568 U.S. 113 (2013)]

151. In this context, one possible test of chilling effect is comparative harm. In this frame-work, the Court is required to see H

p. 906

A whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06-08-2019 to 11-10-2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area. Without such evidence having been B placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and considering that the aforesaid Petitioner C has now resumed publication, we do not deemit fit to indulge more in the issue than to state 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. D I. CONCLUSION

152. In this view, we issue the following directions: a. The Respondent State/competent authoritiesare directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum. b. We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality. c. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.

ANURADHA BHASIN v. UNION OF INDIA & ORS. 907 [N. V. RAMANA, J.]

e. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein. f. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the B Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). g. 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. i. 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. F k. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. l. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power G should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. H

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A m. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure. n. Repetitive orders under Section 144, Cr.P.C. would be an abuse B of power. o. The Respondent State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above. C 153. The Writ Petitions are disposed of in the afore-stated terms. All pending applications are also accordingly disposed of.

Ankit Gyan Writ Petitions disposed of.

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