ANURADHA BHASIN versus UNION OF INDIA & ORS.

Citation: [2020] 1 S.C.R. 812 · Decided: 10-01-2020 · Supreme Court of India · Bench: N.V. RAMANA, R. SUBHASH REDDY, BHUSHAN RAMKRISHNA GAVAI · Disposal: Disposed off

Cited by 4 judgment(s) · cites 26 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 1 S.C.R.
ANURADHA BHASIN
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 1031 of 2019)
JANUARY 10, 2020
[N. V. RAMANA, R. SUBHASH REDDY
AND B. R. GAVAI, JJ.]
Code of Criminal Procedure, 1973 – s. 144 – Temporary
Suspension of Telecom Services (Public Emergency or Public Service)
Rules, 2017 – Exemption from production of orders passed u/s. 144
Cr. P.C. and under the suspension Rules by the Government – Claim
of – Various Authorities passed orders restricting the movement and
communication in the State of Jammu and Kashmir, however, the
orders were not placed before the Court – Held: There are two
separate types of reasoning that mandate the production of the
orders passed by the authorities – First, Art. 19 of the Constitution
mandate right to information as an important facet of the right to
freedom of speech and expression – A democracy, which is sworn
to transparency and accountability, necessarily mandates the
production of orders as it is right of an individual to know – The
State has to act in a responsible manner to uphold Part- III of the
Constitution and not to take away these rights in an implied fashion
or in Casual and Cavalier manner – Second, there is no dispute
that democracy entails free flow of information – There is not only
a normative expectation under the Constitution, but also a
requirement under natural law, that no law should be passed in a
cladestine manner – When there is a curtailment of fundamental
right as a result of any order passed or action taken by the State
which is not easily available, the State should take a proactive
approach in ensuring that all the relevant orders are placed before
the Court, unless there is some specific ground of privilege or
countervailing public interest to be balanced, which must be
specifically claimed by the State on affidavit – In the instant case,
while the State initially claimed privilege, it subsequently dropped
the claim and produced certain sample orders, citing difficulty in
producing all the orders before the Court – This is not a valid ground
to refuse production of orders before the Court.
   [2020] 1 S.C.R. 812
812
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Constitution of India – Art.19(1)(g) – Freedom of trade and
commerce through the medium of the internet – Protection u/Art.
19(1)(g) – Held: Internet is a very important tool for trade and
commerce – The globalization of the Indian economy and the rapid
advances in information and technology have opended up vast
business avenues and transformed India as a global IT hub – 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 u/Art. 19(1)(g), subject to the restrictions provided u/Art.
19(6).
Doctrine/ Principles – Doctrine of proportionality –
Requirement of – Constitution of India – Art. 19(1)(g) – Held: In
the first stage itself, the possible goal of such a measure intended at
imposing restrictions must be determined – It ought to be noted that
such goal must be legitimate – However, before settling on the
aforesaid measure, the authorities must assess the existence of any
alternative mechanism in furtherance of the aforesaid goal – The
appropriateness of such a measure depends on its implication upon
the fundamental rights and the necessity of such measure – It is
undeniable from the aforesaid holding that only the least restrictive
measure can be resorted to by the State, taking into consideration
the facts and circumstances – Lastly, since the order has serious
implications on the fundamental rights of the affected parties, the
same should be supported by sufficient material and should be
amenable to judicial review.
Doctrine/ Principles – Doctrine of Proportionality –
Immediate impact of restrictions upon the realization of the
fundamental rights – Held: To consider the immediate impact of
restrictions upon the realization of the fundamental rights, the
decision maker must prioritize the various factors at stake – Such
attribution of relative importance is what constitutes proportionality
– It ought to be noted that a decision which curtails fundamental
rights without appropriate justification will be classified as
disproportionate – The concept of proportionality requires a
restriction to be tailored in accordance with the territ

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