Anuradha Bhasin case

Also called: Anuradha Bhasin v. Union of India (2020) · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Anuradha Bhasin v. Union of India (10 January 2020) is a Supreme Court judgment on the shutdown in Jammu and Kashmir. It held that:

• speech, and trade or business, carried on over the internet are protected by Articles 19(1)(a) and 19(1)(g);
• every internet suspension order must be published, temporary, proportionate and open to periodic review;
• every Section 144 order must be reasoned and proportionate.

It matters because it was the first major check by the courts on internet shutdowns and blanket prohibitory orders. Its safeguards were later written into the rules under the Telecommunications Act, 2023 [1].

Explanation

Background: why the case arose

• In August 2019, Article 370 was changed. After that, the government:
• suspended the internet across Jammu and Kashmir; and

• imposed Section 144 CrPC orders there. These are prohibitory orders: a magistrate bans gatherings or certain activities in an area to prevent danger.

• People could not speak, report the news or run businesses online. The petition asked whether such sweeping, open-ended limits were valid under Part III (Fundamental Rights).

What the Court held: rights over the internet

• Speech over the internet is protected by Art. 19(1)(a), the freedom of speech and expression.
• Trade and business over the internet is protected by Art. 19(1)(g), the freedom to practise any profession or carry on any trade or business.
• So the State can limit these only through reasonable restrictions allowed by the Constitution: Art. 19(2) for speech and Art. 19(6) for trade.
• What the Court did NOT say: it did not declare internet access a standalone fundamental right. It protected what people do online (speech and trade), not access itself.

Four conditions for an internet suspension order

• Published. The order must be made public, so that a person can challenge it in court.
• Temporary. A suspension with no end date is not allowed.
• Proportionate. The State must choose the least restrictive option that works.
• Open to periodic review. A review committee must check the order again and again.

Section 144 orders and the proportionality test

• Section 144 orders must be reasoned (the grounds are written down) and proportionate.
• They cannot be used again and again to stop the legitimate expression of opinion or grievance.

• How proportionality works. Proportionality is a four-step court test of whether a limit on a right is fair. It comes from Modern Dental College (2016) and K.S. Puttaswamy (2017). The Court applied it in four steps: 1. Legitimate aim: the order must serve a proper purpose, such as public order. 2. Suitability: the measure must actually be connected to that aim. 3. Necessity: no milder option must exist that would work equally well. 4. Balancing: the harm to the right must not be greater than the benefit gained.

• Why this is stricter than the old test. The State must now show why a narrower step, such as a shorter or more local shutdown, would not work. Courts also look at how long the measure lasts and how wide an area it covers.

In the Constitution and practice

• Constitutional base:
• Art. 19(1)(a): speech, limited under Art. 19(2).
• Art. 19(1)(g): trade and business, limited under Art. 19(6).

• Art. 19(1)(b): assembly, limited under Art. 19(3). This is relevant to Section 144 orders.

• Prohibitory orders today. The CrPC has been replaced. The power of CrPC s.144 now sits in Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The rules are:

• Who can issue it: a District Magistrate, a Sub-divisional Magistrate, or an Executive Magistrate specially empowered by the State Government [2].
• Form: the order must be in writing and must state its grounds [2].

• The Bhasin rule (reasoned and proportionate orders) applies to this power too.

• The suspension law after the judgment: Telecommunications Act, 2023. Parliament passed it in December 2023. It allows telecom services to be temporarily suspended only when both conditions below are met [1]:

• there is a public emergency, or suspension is in the interest of public safety; and

• suspension is necessary or expedient for grounds such as security of the State and public order.

• 2024 rules. The Department of Telecommunications released draft rules in August 2024. They replace the older rules on interception and temporary suspension [1]. They turn the Bhasin safeguards into written rules:

Safeguard	2024 rule [1]
Who orders a suspension	The Home Secretary of the Union or of a State. In unavoidable cases, a Joint Secretary (Union) or an authorised officer may order it, but the Home Secretary must confirm it within 24 hours.
Publication	Orders must be published.
Review committee (Union)	Cabinet Secretary, Legal Affairs Secretary, Telecom Secretary
Review committee (State)	Chief Secretary, Law Secretary, and a Secretary other than the Home Secretary
How often it meets	Every two months. It records whether each order follows the Act and can set aside orders.

• Later use of the test. In Gujarat Mazdoor Sabha v. State of Gujarat (2020), the Court struck down a COVID-era notice that exempted factories from overtime-pay rules. A "public emergency" did not justify cutting workers' rights under Arts. 14 and 21.
• Problem in practice. Some states have ordered district-wide or state-wide internet shutdowns to stop cheating in public examinations. Such orders may go beyond the grounds the Act allows [1].

Don't confuse with

• Faheema Shirin v. State of Kerala (2019). In this case the Kerala High Court, not the Supreme Court, held that internet access is part of the right to education and the right to privacy under Art. 21. Anuradha Bhasin protected only speech and trade through the internet.
• Amit Sahni v. Commissioner of Police (2020, Shaheen Bagh). This case is about physical protest: public roads and spaces cannot be occupied indefinitely. Anuradha Bhasin is about internet shutdowns and Section 144 orders.
• Review committee vs judicial review. The review committee under the 2024 rules is made up of executive officers (the Cabinet Secretary or Chief Secretary and others) and meets every two months [1]. It is not a court. Judicial review (a court checking whether a government action is lawful) remains a separate remedy. It is possible because Bhasin requires orders to be published.
• Old reasonableness review vs proportionality. The older test asked broadly whether a limit was "reasonable" (State of Madras v. V.G. Row, 1952). Bhasin applied the four-step proportionality test, which makes the State prove that no milder option exists.

Prelims Hooks

• Anuradha Bhasin v. Union of India was decided on 10 January 2020. It held that speech and trade over the internet are protected under Arts. 19(1)(a) and 19(1)(g).
• Four conditions for an internet suspension order: published, temporary (never indefinite), proportionate (least restrictive), and open to periodic review.
• Trap: the Supreme Court has NOT declared internet access a fundamental right. The Kerala HC recognised it in Faheema Shirin (2019).
• CrPC s.144 → BNSS s.163 (2023): a DM, an SDM or a specially empowered Executive Magistrate issues a written order stating its grounds [2]. Under Bhasin, the order must be reasoned and proportionate.
• The power to suspend the internet now comes from the Telecommunications Act, 2023. It requires a public emergency or public safety, plus a ground such as security of the State or public order [1].
• 2024 rules: the Home Secretary orders a suspension (an order by a lower officer must be confirmed within 24 hours). The review committee meets every two months [1].

Mains Points

• Internet shutdowns as a governance tool. The 2023 Act and the 2024 rules turned the Bhasin safeguards into written rules: publication, Home Secretary orders, and review every two months [1]. Gaps remain:
• review is done inside the executive, with no judicial member;
• state-wide shutdowns for exams may go beyond the grounds the Act allows [1].

• Possible reforms: a fixed maximum duration, judicial oversight, and targeted blocking instead of area-wide blocking.

• Proportionality as the main test. Bhasin makes the State explain why a milder measure would not work. This is stronger than the older, more lenient "reasonableness" review. Critics say courts apply the test unevenly. In the J&K matter, the review was left to the executive's own committee while restrictions continued. Some say this left the issue pending until it was over.

• Section 144 / BNSS s.163 and dissent. Blanket "five or more persons" orders can smother peaceful protest. Bhasin's rule that orders must be reasoned, proportionate and not repeated supports a balanced approach: regulate the time, place and manner of a protest, but never ban dissent itself.

Related concepts

• Freedom of assembly
• Right to protest
• Prohibitory order
• Freedom of association
• Right to strike
• Freedom of movement
• Freedom of residence
• Freedom of profession
• Right to access the internet
• Doctrine of proportionality

Read more

• Assembly, association, movement and occupation; protests and shutdowns