Anuradha Bhasin v. Union of India: the internet as constitutionally protected medium and the proportionality four-step test

The Kashmir communications shutdown imposed on the night of 4–5 August 2019 — coinciding with the executive abrogation of Article 370 of the Constitution — was, at the time, the most extensive sustained telecommunications restriction imposed in a constitutional democracy. Mobile telephony was disconnected. Landline services were intermittent. Internet access — both broadband and mobile data — was suspended across the Union Territory of Jammu and Kashmir. Section 144 of the Code of Criminal Procedure orders prohibiting assembly were issued by district administrations across the Valley. Movement of persons, including journalists, was restricted. The shutdown extended through August, September, October and November 2019; partial restoration began in stages thereafter.

Anuradha Bhasin, executive editor of the Kashmir Times, moved this Court under Article 32 in August 2019 — joined shortly afterwards by Ghulam Nabi Azad, member of Parliament and senior political leader. The petitions sought directions on (a) the lifting of the communications shutdown, (b) the unconstitutionality of the Section 144 orders, and (c) the protection of journalistic and political activity in the region.

On 10 January 2020, a three-judge bench of N.V. Ramana, J., R. Subhash Reddy, J. and B.R. Gavai, J. delivered the judgment in Anuradha Bhasin v. Union of India. The companion judgment in Ghulam Nabi Azad v. Union of India was delivered the same day. Ramana, J. authored both. The Bench declined to enter the political question of the Article 370 abrogation itself — that question was carried in a separate batch of petitions and decided four years later in In Re Article 370 of the Constitution (2023). The Bhasin judgment is, strictly, a judgment about the constitutional architecture of telecommunications restriction, of internet access, and of Section 144 CrPC orders.

The judgment is doctrinally in four layers. Internet access as a constitutionally protected medium of expression and trade. The proportionality four-step test, imported from K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, into the Article 19(2) and Article 19(6) restriction analysis. The procedural architecture of telecom suspension under the 2017 Rules — publication, reasoned orders, mandatory periodic review, judicial review. And the limits of Section 144 CrPC in the context of sustained political restriction.

The architecture of the question

The legal framework had three components. Article 19(1)(a) protects speech and expression; Article 19(1)(g) protects the freedom to practise any profession or carry on any trade or business; restrictions under Articles 19(2) and 19(6) must be reasonable and confined to enumerated grounds. Section 5(2) of the Indian Telegraph Act, 1885 — the colonial statute that continues to underpin telecommunications regulation in India — confers the power to suspend telecom services in the interests of public safety on the occurrence of a public emergency; the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 supply the procedural architecture, including a Review Committee mechanism. Section 144 of the Code of Criminal Procedure empowers an Executive Magistrate to prohibit assembly or restrict movement where necessary to prevent disturbance of public tranquillity.

The Bench had to decide four questions. Is the internet a constitutionally protected medium? What is the standard of restriction on speech and trade exercised through that medium? What procedural safeguards govern telecom suspension orders? And what limits constrain the executive's Section 144 CrPC jurisdiction in the context of sustained political restriction?

The factual matrix

The record before the Bench included the suspension orders issued under the 2017 Rules, the Section 144 orders of the district administrations, the petitioners' affidavits on the operational consequences for the press and the public, and the Government's response on security and public-order rationales.

The petitioners' case rested on four propositions: that the communications shutdown — particularly the internet shutdown — operated as a comprehensive restriction on speech, press and digital trade; that the suspension orders had not been published and could not be traced on the available record to the procedural framework of the 2017 Rules; that the Section 144 orders had been issued in perpetuity, on stock language, without contemporaneous application of mind; and that the restrictions exceeded what proportionality required. The Government's case rested on the security situation in the Valley, the assessed risk of cross-border instigation and internal incitement, and the executive's margin of appreciation in matters of national security.

The reasoning

Internet as constitutionally protected medium — but not a free-standing right to internet access

The first move in Ramana, J.'s reasoning is the careful articulation of the constitutional position of the internet. The Bench held that the freedom of speech and expression under Article 19(1)(a), and the freedom to practise any profession or to carry on any occupation, trade or business under Article 19(1)(g), extend to those activities when conducted over the medium of the internet. The internet is a constitutionally protected medium of communication and trade.

The Bench was careful, however, to limit the holding to the protection of the underlying activities when conducted through the medium. The judgment does not recognise a free-standing fundamental right to internet access detached from the activities the internet enables. The distinction matters: Faheema Shirin v. State of Kerala, 2019 (2) KHC 220 — a Kerala High Court decision that had recognised a broader right to internet access as such — was a different doctrinal position, and the Supreme Court in Bhasin did not adopt that broader framing.

The practical consequence is that the constitutional protection of internet activity is mediated through the protection of the underlying speech and trade. A restriction on internet access engages Article 19(1)(a) and 19(1)(g) because, and to the extent that, it operates as a restriction on the underlying speech and trade. The protective ambit is operational rather than ontological.

The proportionality four-step test

The second move is the formal importation of the four-step proportionality test from K.S. Puttaswamy v. Union of India — the nine-judge privacy bench — into the Article 19(2) and Article 19(6) restriction analysis. Puttaswamy had formulated the proportionality test in the context of restrictions on the right to privacy under Article 21. Bhasin extended it expressly to restrictions on the Article 19 freedoms.

The test, as articulated, has four steps. First, the restriction must pursue a legitimate aim — falling within the enumerated grounds of Article 19(2) (for speech) or Article 19(6) (for trade). Second, the restriction must be suitable — there must be a rational connection between the restriction and the legitimate aim. Third, the restriction must be necessary — the least restrictive means reasonably available to achieve the legitimate aim. Fourth, the restriction must balance the gravity of the restriction against the importance of the public interest served — the restriction must not impose a burden disproportionate to the benefit it secures.

The Bench applied the test to the telecom suspension. The legitimate-aim limb was satisfied — the security concerns advanced by the Government fell within the enumerated grounds. The suitability limb was not contested. The necessity limb — the least-restrictive-means inquiry — was where the State's burden became substantial: the Bench held that an indefinite, comprehensive shutdown was not the least restrictive means; targeted restrictions on specific services, geographical areas or time bands could, in principle, secure the security objective at a lower constitutional cost. The balancing limb — the proportionality of burden to benefit — required the executive to demonstrate that the magnitude of the restriction was proportionate to the public-order risk; on the record before the Bench, that demonstration had not been adequately made.

The four-step proportionality test installed by Bhasin is now the working rubric for every Article 19 restriction case. It has been applied in later telecom-suspension cases, in Section 69A IT Act blocking-order cases, and in the wider freedom-of-expression jurisprudence.

The procedural architecture of telecom suspension

The third move is the procedural recalibration of the 2017 Rules. The Bench held that suspension orders issued under the Rules must satisfy four procedural requirements.

First, the orders must be published. The Bench rejected the operational practice of treating suspension orders as internal administrative communications. A restriction on a fundamental right that operates without publication is, on the Bhasin logic, an unreviewable restriction — and an unreviewable restriction cannot be reconciled with the constitutional architecture of justiciable rights. The publication requirement allows the persons whose rights are restricted to know of the restriction, to assess its scope, and to challenge it.

Second, the orders must record reasons. The reasons must be contemporaneous with the issuance of the order, not retrospectively constructed. The reasons must be sufficient to enable judicial review of the proportionality of the restriction.

Third, the orders are subject to judicial review. The Bench rejected the argument that telecom suspension was a matter of executive discretion immune from review. Every suspension order is reviewable under Article 226 by the relevant High Court and under Article 32 by the Supreme Court, with the proportionality four-step test as the working standard.

Fourth, the Review Committee under the 2017 Rules — composed of senior executive officers — must meet within seven working days of the issuance of the order and at fortnightly intervals thereafter, to assess whether the suspension continues to satisfy the procedural and proportionality requirements. The seven-day / fortnightly cadence is a constitutional minimum derived from the Bench's reading of the Rules in conjunction with the constitutional restriction-analysis.

Section 144 CrPC and sustained political restriction

The fourth move — developed at length in the Ghulam Nabi Azad companion judgment — addresses the limits of Section 144 CrPC. The Bench held that Section 144 cannot be used to suppress legitimate political dissent; that orders under the Section must record reasons disclosed to the affected persons; that orders must be issued on fresh contemporaneous application of mind, not on stock language reissued at routine intervals; that orders must be tailored to the specific public-order concern, not framed as comprehensive prohibitions on assembly or movement; and that the executive's Section 144 jurisdiction cannot be deployed in perpetuity to maintain a continuous political restriction.

The Bench did not strike down any particular Section 144 order in Bhasin itself. The operative directions were procedural: orders must be reviewed against the standards set out, and orders that fail those standards are open to challenge in the High Courts. The companion Azad judgment supplied the more detailed operative directions on Section 144.

The doctrinal contribution

Bhasin's doctrinal contribution operates at three levels.

First, on the substantive level, the judgment installed the proposition that the constitutional protection of speech, expression and trade extends to those activities when conducted over the internet. The constitutional architecture of Article 19 — formulated when speech was print, trade was physical and assembly was geographical — was textually capacious enough to accommodate the digital extensions, and the Bench did the doctrinal work of extending the protection.

Second, on the analytical level, the judgment generalised the four-step proportionality test as the working standard for Article 19 restrictions. The proportionality test had been the analytical method of restrictions analysis since at least K.S. Puttaswamy, but Bhasin's express application to Article 19 — across both the 19(2) speech-grounds and the 19(6) trade-grounds — entrenched proportionality as the standard rather than the older "reasonable restriction" formula. The shift matters: proportionality requires the Court to engage with the less-restrictive-means and the balancing limbs in a way that the older standard did not.

Third, on the procedural level, the judgment installed the publication / reasons / review / judicial-review architecture for telecom suspension orders. That architecture has, in subsequent cases, been treated as the constitutional minimum for any restriction of a Article 19 right that operates through a specialised regulatory framework.

What the Court did not decide

A few matters Bhasin declined to address.

First, the Bench did not adjudicate the constitutional validity of the Article 370 abrogation. That question was kept for the separate constitutional reference and decided in In Re Article 370 of the Constitution, (2024) 5 SCC 1, four years later. Bhasin is, strictly, a case about restrictions and their procedural architecture, not about the constitutional change to the status of Jammu and Kashmir.

Second, the Bench did not adjudicate the validity of any specific suspension order. The judgment supplied the procedural and substantive standards; it left the application of those standards to particular orders to the relevant High Courts. The High Court of Jammu and Kashmir (and, after the bifurcation, the High Court of Jammu and Kashmir and Ladakh) became the forum for the operational implementation.

Third, the Bench did not recognise a free-standing fundamental right to internet access. The constitutional protection of internet activity is mediated through the protection of underlying speech and trade. The broader proposition — that access to the internet is itself a fundamental right detached from those underlying activities — remains, as a matter of Supreme Court precedent, undecided.

Fourth, the Bench did not address the operational interface between Section 5(2) of the Telegraph Act, the 2017 Rules, and Section 69A of the Information Technology Act, 2000 — the parallel statutory framework for blocking-orders. The two frameworks operate at different doctrinal levels (telecom-service suspension under the Telegraph Act and Rules; content-blocking under the IT Act and the Shreya Singhal v. Union of India, (2015) 5 SCC 1, judicial-review architecture). Their interaction has been worked out case by case in subsequent litigation.

The doctrinal arc

Behind Bhasin lie Shreya Singhal v. Union of India, (2015) 5 SCC 1, which struck down Section 66A of the Information Technology Act and laid down the procedural architecture for Section 69A blocking orders, and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the nine-judge privacy bench that formulated the four-step proportionality test in the context of Article 21 restrictions.

Ahead of Bhasin lies Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, (2020) 5 SCC 746 — decided 11 May 2020 — which addressed the continued restriction of mobile data services in J&K to 2G speeds. The Bench declined to direct the restoration of 4G service across the Union Territory, but constituted a Special Committee headed by the Union Home Secretary to review the restriction in the light of the Bhasin framework. Mobile 4G services were restored across J&K on 5 February 2021. Subsequent telecom-suspension challenges in Manipur (2023) and Rajasthan have proceeded on the Bhasin template.

On the legislative side, the Telecommunications Act, 2023 — which replaced the Indian Telegraph Act, 1885 — provides, in Section 20, a fresh statutory framework for telecommunications suspension. The Telecommunications (Temporary Suspension of Services) Rules, 2024 — framed under the 2023 Act — import in substantial measure the Bhasin requirements of publication, reasoned orders, mandatory Review Committee meetings and judicial review. On the Section 144 CrPC side, Bhasin and Azad have informed the Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439 (Shaheen Bagh), line on the right to peaceful protest.

What practitioners take from Bhasin

For the constitutional bar in 2026, Bhasin is the operational charter for telecom-suspension and Section 144 CrPC challenges, and the analytical template for Article 19 restriction cases more generally.

The four-step proportionality test is the working rubric for Article 19 restrictions. Counsel framing or defending an Article 19 restriction should structure the argument explicitly around the legitimate-aim, suitability, necessity / least-restrictive-means and balancing limbs. Pleadings that engage the older "reasonable restriction" formula without the proportionality structure are pleading on outdated authority.

Telecom suspension orders must satisfy the four procedural requirements. Publication, reasoned orders, judicial reviewability, and mandatory Review Committee meetings within seven working days and fortnightly thereafter — these are constitutional minima that the executive cannot lawfully bypass. A suspension order that fails any of them is open to challenge in the High Court under Article 226 or in the Supreme Court under Article 32.

Section 144 CrPC orders must satisfy the contemporaneous-reasons standard. Orders issued in stock language at routine intervals, orders that suppress legitimate dissent, orders that operate as comprehensive perpetual prohibitions — these are open to challenge under the Bhasin and Azad standards. Counsel defending such orders should ensure that the contemporaneous record demonstrates fresh application of mind to the specific public-order concern and the tailoring of the order to that concern.

Internet activity is protected through the protection of underlying speech and trade. Counsel pleading an internet-access challenge should be careful to ground the claim in the Article 19(1)(a) or Article 19(1)(g) protection of the underlying activity, not in a free-standing right to internet access. The Supreme Court has not recognised the broader free-standing right.

The Telecommunications Act 2023 and the 2024 Suspension Rules carry forward the Bhasin architecture. Post-replacement of the Telegraph Act, the operational regime for telecom suspension is the Section 20 of the 2023 Act and the 2024 Rules. The constitutional minima installed by Bhasin operate within that framework; counsel handling a 2024-Rules suspension challenge should test the order against the Bhasin standards as those standards are now reflected in the 2024 Rules.

Related editorial pieces

• Vineet Narain v. Union of India: continuing mandamus and the Article 32 supervisory jurisdiction
• K.S. Puttaswamy v. Union of India: the right to privacy and the proportionality test
• In Re Article 370 of the Constitution: the constitutional reference on Jammu and Kashmir
• L. Chandra Kumar v. Union of India: judicial review as basic structure