Anuradha Bhasin v. Union of India: An Examination of the Supreme Court’s Application of the Doctrine of Proportionality

*Mathanki Narayanan

Introduction

Anuradha Bhasin v. Union of India is a landmark case in the realm of constitutional law due to its espousal of the proportionality test (laid down in K.S. Puttaswamy v. Union of India) as the standard of review for restrictions on fundamental rights, as well as its decision to include the freedom of trade and commerce through the internet under the ambit of Article 19. This article argues that while the Court’s adoption of the proportionality test is commendable, the manner in which the test was applied gave rise to additional questions which were left unaddressed. By equipping the executive with review powers, refraining from delineating the boundaries of exceptions in cases of national security, and disregarding the retrospective effect of the impugned restrictions, the Supreme Court has sidestepped questions of constitutional significance and paved the way for possible misuse by the State. 

Facts, Arguments and Outcome 

For many decades, the state of Jammu and Kashmir has been the subject of dispute between Pakistan and India. Despite being an Indian state, Jammu and Kashmir had been enjoying a special status under Article 370, which allowed it to have its own constitution. On 05.08.2019, the President of India issued a constitutional order which abrogated Article 370 and enforced all provisions of the Constitution of India on Jammu and Kashmir. District Magistrates also invoked Section 144 on the same day, thereby restricting freedom of movement and public gatherings in anticipation of potential breaches of peace and tranquility. Landline connectivity, mobile phone networks, and internet services had also been discontinued the previous day. As a result, the first petitioner, a journalist, faced logistical difficulties and thus could not publish her newspaper for many weeks. 

The petitioner contended that the restrictions on the freedom of movement, as well as the internet shutdown, were in violation of Article 19. Furthermore, she claimed that the government did not adequately factor in the proportionality requirements, or their absence, in implementing these measures. The respondents contended that the actual extent of the restrictions, as well as their impact, was exaggerated by the petitioners. Given the political history of this region, the counsel for the State asserted that such measures were necessary; government officers on the ground were best suited to decide the same. Additionally,  he claimed that it was not possible to ban specific parts of the internet, thus only a complete shutdown would be effective. 

The Court identified certain key issues: first, whether the government can exempt themselves from producing the restriction orders; second, whether the freedom of trade and commerce through the internet comes under the scope of Article 19; third, the consequent validity of the prohibition of internet access; fourth,  whether the imposition of Section 144 was valid; and lastly, if the freedom of press was violated by these restrictions. The Court ultimately held that the freedom of trade and commerce through the internet is constitutionally protected by Article 19 and that the State could not indefinitely impose an internet shutdown. Any restriction on the freedom of speech or expression, and the freedom to practice any trade, business or occupation through the internet would have to conform to Article 19(2) and 19(6), including the test of proportionality; both these freedoms are constitutionally protected by Article 19(1)(a) and 19(1)(g). Recognizing the inadequacy of the Suspension Rules, the Court additionally stated that any order passed under the same must be subjected to periodic reviews by a Review Committee to evaluate the proportionality of the order as well as its adherence to Section 5(2) of the Telegraph Act. With respect to Section 144, the Court held that the powers exercisable under this section are both remedial and preventive in nature; however, they could not be used to hinder the legitimate expression of opinions or the exercise of democratic rights. The concerned Magistrate must also ensure that the principle of proportionality is used to strike a balance between rights and restrictions.

Analysis

Any court, in deciding the balance between fundamental rights and rights limitations, situates itself on a deferential spectrum. Deference here is indicative of two things: first, how the court views itself as a guardian of fundamental rights, and second, the extent of its consequent duties in relation to other branches of the government. A high level of deference is correlated to a lower degree of evidential and substantial scrutiny, as well as an increased scope for the exercise of State power in limiting fundamental rights. On one hand, such an approach would weaken constitutional safeguards for the protection of rights; on the other hand, requiring the State to furnish empirical evidence in accordance with a high level of scrutiny might only prevent the State from discharging its duties. In this context, positioning the Supreme Court’s judgment in Anuradha Bhasin in this deferential spectrum will serve as an important determinant for the future of fundamental rights in India. 

Three factors need to be examined in order to do so. First, the Supreme Court has effectively abstained from judicial review of suspension orders. By focusing purely on the procedural obligations laid down by the Suspension Rules, the Court did not address the adequacy of Rule 2(2) in incorporating the principle of proportionality. In a milieu where State infringements upon fundamental rights are becoming increasingly prevalent, Courts have a greater imperative to protect the rights of citizens. By delegating the duty to review suspension orders to the Review Committee (which is composed of members of the executive), the Supreme Court is, in a way, reneging on the foundational tenets of judicial disqualification. Certainly, it can be argued that this Committee is not the judiciary, but to bestow powers of review to the very branch of the government upon whom allegations of unconstitutionality have been made is counteractive, to say the least. Furthermore, the prospective nature of this executive review represents another affront to the rights of citizens who have had to suffer financial and psychological distress due to the restrictions. There was no direction by the Court that this Committee must review its actions retrospectively; thus, the Court evaded the issue of the constitutionality of the impugned restrictions and shutdown.  

Second, it is important to note that this review delegated to the executive was primarily procedural in nature. The Committee is also expected to juxtapose the restriction with the proportionality test provided in the Suspension Rules, but such a question relating to the substantive facet of the restrictions would be more fittingly answered by the judiciary itself. In light of the far-reaching consequences of such restrictions, precluding these reviews from possessing the force of law by abdicating in favor of the executive is another issue that imperils the future of fundamental rights. That the judiciary has refrained from undertaking judicial review on the basis of substantive issues is not an unprecedented incident; the Supreme Court, particularly in cases pertaining to national security, has confined itself to answering questions of procedural importance. However,  Anuradha Bhasin characterizes a riskier departure from tradition, as the Court has inadequately addressed both substantive and procedural matters partly due to the failure of the respondent to produce all the impugned orders before the Court. Even when the respondent managed to produce eight sample orders before the Supreme Court (the validity of which was contested by the petitioners as they were issued by an incompetent authority), the Court did not address them though this could have been achieved on an unproblematic statutory basis instead of a constitutional one.

Third, the Supreme Court, in this case, stated that the principle of proportionality would be the most appropriate test to determine the constitutional validity of restrictions upon fundamental rights; however, it also laid down an exception in cases involving national security, sovereignty and integrity. The Court did not expressly delineate the boundaries of these exceptions, thus paving the way for even more uncertainty and the possibility of misuse by the State. With specific reference to Jammu and Kashmir, such an evasion only gives wider scope for the imposition of future restrictions on the right to carry out trade and commerce through the internet. This concern is further exacerbated by the possibility of repeat orders which was unaddressed by the Supreme Court. Allowing the State to impose expansive restrictions on fundamental rights where a majority of the population is blameless (whilst simultaneously eliminating the reputational and legal ramifications that accompany the imposition of an emergency) would also take advantage of the prescription of most constitutional rights in India as a negative list.

With respect to the application of the proportionality test, there are two issues which ought to have been addressed more comprehensively: first, the information that was subjected to examination, and second, the State’s evaluation of alternatives. For proportionality analysis to be truly effective, it must test the working of the law, instead of merely the law itself. Such an approach would allow the Court to account for the factual effectiveness and impact of the law, thereby ensuring that the test of proportionality itself, as well as suitability and necessity, are grounded in practicality. Doing otherwise would only dilute the intensity of review by focusing on logical inconsistencies. Combined with the respondent’s inability to produce the relevant orders, the Court’s reluctance to engage with factual information (by claiming that Magistrates were best-suited to issue orders under Section 144) gave rise to a judgment that was grounded more in the law itself, than in the practical implications of the law. Though the Court in Gulam Abbas v. State of Uttar Pradesh stated that the Magistrate’s efforts must be targeted at the people committing the wrongs instead of the wronged, the State’s inadequate evaluation of alternatives unfairly caused the majority of Jammu and Kashmir to bear the brunt of the restrictions. Presuming every citizen to be a criminal would be arbitrary and also disproportionate. The respondent claimed that only a complete internet shutdown would be effective in counteracting terrorist activities as terrorists cannot be easily separated from the rest of the population. But insofar as the internet enables terrorism, it also provides newer avenues for countering the same. Indexing methods, surveillance and intelligence activities, as well as the development of infrastructural capacity for counter-terrorism measures that are more accommodative of technological developments are long-term alternatives that the State did not even consider. Even short-term alternatives to complete shutdown were not put forth before the Court on grounds of technological deficits; though the Court acknowledged that this is inacceptable, it did not do much else apart from advocating for a multi-faceted approach. The reach of the Court’s application of proportionality was thus very limited and did not accurately consider the intrusiveness of the restrictions. To put it concisely, the Court in this judgment was on the higher end of the deferential spectrum. 

Afterlife

The shortcomings of the Supreme Court were highlighted in the case of Foundation for Media Professionals v. Union of India. Here, although the relevant orders were produced before the Court (since the Court had directed publication of suspension orders in Anuradha Bhasin), the Court still refused to engage in substantive review. Instead, the Court re-delegated the task of reviewing these restrictions to a Special Committee composed of executive officers. Abstaining from judicial review yet again is reflective of a disregard for fundamental rights protection as well as larger humanitarian issues. Though the executive might be more suited to decide upon security issues, courts are best equipped to evaluate the proportionality of the same. Alternatively, in Manohar Lal Sharma v. Union of India, the Supreme Court took cognizance of the possibility of misuse of the national security exception, and also cited Anuradha Bhasin to establish the disproportionately restrictive effect of the State’s actions. 

Conclusion

In light of all these factors, the fact that the Court has cemented the doctrine of proportionality as the standard for determining constitutionality of rights limitations is an admirable step in the right direction. But careful heed must be paid to how the Court chooses to apply the test of proportionality. Anuradha Bhasin stands testament to the reluctance of Courts to act as a guardian of fundamental rights, particularly in cases where they might be in conflict with the executive. The Supreme Court’s affinity to abdicate its powers of judicial review to the executive is concerning for two reasons: first, as it marks a form of judicial escapism, and second, because it poses substantive questions to the security of fundamental rights in India. To realign the future of rights limitation in a direction that is less intrusive and deferential, the Court must actively undertake a positivist approach to proportionality analysis and also attempt to decrease any ambiguities in its approach to the same. The Court also needs to address the possibility of repeat orders; turning a blind eye to the executive by equipping it with powers of review in cases of rights limitation is a dangerously slippery slope to be on. 

*Mathanki Narayanan is a 4th-year law student, pursuing B.A. LL.B. at Jindal Global Law School.

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.