Back
SUPREME COURT OF INDIA
N.V. RAMANA, R. SUBHASH REDDY, B. R. GAVAI, JJ.
ANURADHA BHASIN – PETITIONER
VERSUS
UNION OF INDIA AND ORS. – RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 1031 OF 2019
And
GHULAM NABI AZAD – PETITIONER
VERSUS
UNION OF INDIA AND ANR. – RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 1164 OF 2019
Decided On : 10-1-2020
(a) Constitution of India - Articles 32, 19, - State cannot withhold information on restricting fundamental rights - Fundamental rights cannot be restricted in an implied fashion or in casual and cavalier manner - Natural law demands that no law should be passed in a clandestine manner - Orders restricting fundamental rights must be placed before the Court - Regardless of whether the parent statute or rule prescribes the same or not - State producing certain sample orders, citing difficulty in producing all the orders before the Court - Not a valid ground to refuse production of orders before the Court. (Para 15, 16, 17, 18, 92)
(b) Constitution of India - Part III - Fundamental rights - Prescribed as a negative list, so that “no person could be denied such right until the Constitution itself prescribes such limitations” - Only exception being Article 21A - A positive right requiring an active effort by Government to ensure that the right to education is provided to all children up to the age of 16 years. (Para 20)
(c) Constitution of India - Article 19 - Internet and Fundamental right - Its greater impact cannot restrict the content of the right nor can it justify its denial - Freedom of speech and expression through internet - An integral part of Article 19(1)(a) - Can be restricted only in accordance with Article 19(2). (Para 25, 26)
(d) Constitution of India - Article 19 - Freedom of trade and commerce through internet - An integral part of Article 19(1)(a) - Can be restricted only in accordance with Article 19(2). (Para 27)
(e) Constitution of India - Article 19(2) - Internet - Restrictions - Reasonable - Limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence - Restriction includes complete prohibition in appropriate cases - Even then free speech should not be burdened excessively - Not imposing lesser alternatives should be justified. (Para 31, 32, 33)
(f) Constitution of India - Article 19(2) - Internet - Restrictions - No constitutional right can be claimed to be absolute - However, they require strong protection - Concepts of balancing and proportionality - Any speech which incites imminent violence does not enjoy constitutional protection - Instantly question one of extent rather than the existence of the Government’s power to restrict - Balancing national security with liberty - Reasonableness - Only the least restrictive measure can be resorted to by the State - Such measures/orders should be supported by sufficient material and should be amenable to judicial review. (Para 34, 45, 46, 49, 54, 65, 70)
(g) Constitution of India - Article 19(2) - Internet - Restrictions - Complete blocking/prohibition perpetually - Not permissible - But, internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India - Government is required to consider various options under Article 19(2) to minimize burden on freedom of speech - Periodical review by review committee. (Para 76, 100)
(h) Administration of justice - Substantial justice under fundamental rights is important - However, procedural justice cannot be sacrificed. (Para 79)
(i) Constitution of India - Article 19 - Blocking of internet - Section 69A, Information Technology Act, 2000; section 144, Code of Criminal Procedure, 1973; Section 7 and 5(2), the Telegraph Act; Rule 2, Suspension Rules under Telegraph Act - Order of suspension of internet - Requirement of “public emergency” or “in the interest of public safety” - Complete broad suspension of telecom services, Internet or otherwise - Only if ‘necessary’ and ‘unavoidable’. (Para 92, 99)
(j) Code of Criminal Procedure, 1973 - Section 144 - A remedial as well as preventive power - Power not arbitrary - Can only be exercised in an emergency - Apprehension of danger, not just mere “likelihood” or a “tendency” - Order subject to challenge before High Court - Power cannot be used to prevent legitimate expression of opinion or grievance or exercise of any democratic rights. (Para 109, 116, 118, 129, 140)
(k) Code of Criminal Procedure, 1973 - Section 144 - “Public order” and “law and order” - Mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order - ‘Law and order’, ‘public order’ and ‘security of State’ are distinct legal standards. (Para 121, 123)
(k) Code of Criminal Procedure, 1973 - Section 144 - Order u/s 144 can be passed against a particular individual or the public in general - Concept of proportionality applies - Imperative to indicate the material facts necessitating passing of such orders. (Para 124, 126, 130)
(l) Administration of justice - Judicial review - Law and order issues - Courts can review but cannot sit in appeal - Orders passed mechanically or in a cryptic manner - Would be illegal. (Para 132, 134)
(m) Code of Criminal Procedure, 1973 - Section 144(5) - Peoples’ right to make representation against order u/s 144 - Imperative for the State to make such orders public. (Para 136)
(n) Constitution of India - Article 19(1)(a) - Freedom of press - Chilling effect of various orders - Test of ‘direct and inevitable consequence’ - Chilling effect does not make a regulatory order unconstitutional - Test of comparative harm - Responsible Governments are required to respect the freedom of the press at all times. (Para 150, 151)
Facts of the case:
These petitions challenge the Constitutional Order 272 dated 05.08.2019 issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir.
Petitioners seek issuance of an appropriate writ for setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality.
Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164 of 2019), alleges that he was stopped from travelling to his constituency in Jammu and Kashmir. In this context, he alleges that due to the aforesaid restrictions, he is not able to communicate with the people of his constituency.
Finding of the Court:
An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
Result: Petitions disposed of.
Certainly. Based on the provided legal document, here are the key points summarized:
Powers under Section 144, Cr.P.C. can be exercised not only in cases of present danger but also in situations where there is an apprehension of danger. Such powers are meant for urgent situations to prevent obstruction, annoyance, injury, or threats to public safety, and should not be used to suppress legitimate expression or democratic rights (!) (!) .
Orders passed under Section 144, Cr.P.C. must state the material facts clearly to allow for judicial review. The exercise of this power must be bona fide, reasonable, and based on sufficient material, with proper application of mind. Repetitive or cryptic orders are considered an abuse of power (!) (!) .
The power to impose restrictions under Section 144, Cr.P.C. should be proportionate to the situation, and the restrictions must be the least intrusive measure necessary to address the threat. Orders must be specific, targeted, and supported by objective material, avoiding blanket bans (!) (!) .
Restrictions on fundamental rights, including freedom of speech, expression, and movement, are permissible only if they meet the criteria of reasonableness, legality, and necessity, and are in accordance with the principles of proportionality. Complete bans or indefinite suspensions are generally impermissible unless justified by exceptional circumstances (!) (!) (!) .
The freedom of the press and the right to communicate are protected under the Constitution. Any restrictions that impact these rights must be carefully balanced against security concerns, and should not produce a chilling effect unless supported by concrete evidence of such harm (!) (!) .
Orders restricting internet access must adhere to procedural safeguards, including transparency, publication of orders, and the opportunity for affected parties to challenge them. Orders should be based on objective facts, properly recorded, and subject to periodic review to ensure they remain proportionate and necessary (!) (!) .
The procedural mechanisms for restrictions, including those under the Suspension Rules, require that orders be issued by authorized authorities, contain reasons, and be communicated properly. Orders must be reviewed regularly, and their duration should not extend beyond what is necessary to address the exigency (!) (!) .
Any restrictions imposed must be consistent with the constitutional mandates of reasonableness and proportionality, and must respect the principles of natural justice, including the right to a fair hearing and the availability of judicial review (!) (!) .
The exercise of powers under laws related to public emergency and public safety must be transparent, with orders made available to the public and affected individuals, to enable effective challenge and oversight. Orders based on secret or privileged information are not valid unless justified (!) (!) .
Overall, restrictions on fundamental rights during emergencies should be temporary, proportionate, and supported by objective material, with continuous oversight to prevent abuse of power and safeguard democratic freedoms (!) (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this document.
JUDGMENT
TABLE OF CONTENTS
| Introduction | A |
| Contentions | B |
| Issues | C |
| Production of Orders | D |
| Fundamental Rights under Part III and restrictions thereof | E |
| Internet Shutdown | F |
| Restrictions under Section 144, Cr.P.C | G |
| Freedom of the Press | H |
| Conclusion | I |
N.V. RAMANA, J.
A. INTRODUCTION
“It was the best of times, it was the worst of times,
it was the age of wisdom, it was the age of foolishness,
it was the epoch of belief, it was the epoch of incredulity,
it was the season of Light, it was the season of Darkness,
it was the spring of hope, it was the winter of despair,
we had everything before us, we had nothing before us,
we were all going direct to Heaven, we were all going direct the other way
in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”
-Charles Dickens in A Tale of Two Cities
1. Although cherished in our heart as a “Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this context, this Court’s job is compounded by the magnitude of the task before it. It goes without saying that this Court will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.
2. Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security? Although the choice is seemingly challenging, we need to clear ourselves from the platitude of rhetoric and provide a meaningful answer so that every citizen has adequate security and sufficient liberty. The pendulum of preference should not swing in either extreme direction so that one preference compromises the other. It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.
3. The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas.
4. On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Cr.P.C. Due to the aforesaid restrictions, the Petitioner in W.P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
