TaxTMI 
TaxTMI 
2020 (1) TMI 1387
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.... Narayan, Adv., Mr. Dushyant Dave, Sr. Adv., Mr. Apar Gupta, Adv. Ms. Astha Sharma, AOR, Mr. Amjid Maqbool, Adv., Ms. Vrinda Bhandari, Adv., Mr. Abhishek Man Chanda, Adv., Ms. Kajal Dalal, Adv., Ms. Devdutta Mukhopadhyay, Adv., Ms. Neha Sangwan, Adv., Mr. Charanjeet Chanderpal, Adv. Mr. Anil Kumar, AOR, Mr. Bimal Roy Jad, Adv., Mr. N.G. Dev, Adv., Mr. Sumit Moza, Adv., Ms. Shikha Dixit, Adv. JUDGMENT N.V. Ramana, J. 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, Code of Criminal Procedure G Freedom of the Press H Conclusion I 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, ....
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....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, Code of Criminal Procedure 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 been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions. 5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad) approached this Court Under Article 32 of the Constitution seeking issuance of an appropriate writ for ....
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....s later de-tagged. On 16.09.2019, a Co-ordinate Bench of this Court ordered the following: The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities. When the said writ petition was listed before this Bench on 01.10.2019, in light of expediency, this Bench directed that no further intervention applications shall be entertained. However, liberty was granted to file additional documents in support of applications for intervention. When the matter came up for hearing on the next date on 16.10.2019, the following order was passed: When these matters came up for hearing today, learned Solicitor General appearing for the Union of India made a submission that after filing the counter affidavit in these matters, certain ....
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....y Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 [hereinafter "Suspension Rules"], which were notified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was contemplated to be of a temporary nature. * The orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the restrictions pertaining to the Internet and phones (either mobile or telephone were ex facie perverse and suffered from non-application of mind. * Learned Counsel submitted that the orders were not in compliance with the procedure prescribed under the Suspension Rules. Further, the orders did not provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules. * Lastly, the learned Counsel contended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is not the same as law and order, and the situation at the time when the orders were passed did not warrant the passing of the orders resulting in restrictions. Mr. Kapil Sibal, Senior Counsel for the....
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....ould amount to a complete ban. Instead, a distinction should be drawn while imposing restrictions on social media/mass communication and the general internet. The least restrictive option must be put in place, and the State should have taken preventive or protective measures. Ultimately, the State needs to balance the safety of the people with their lawful exercise of their fundamental rights. * On internet restrictions, the learned senior Counsel submitted that such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has been done in India while prohibiting human trafficking and child pornography websites. The learned senior Counsel pointed to orders passed in Bihar, and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same could have been followed in this case as well. * Indicating that the State can impose restrictions, the learned senior Counsel focussed on the question of the "least restrictive m....
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....he State to impose broad restrictions on fundamental rights in varied situations. It would amount to individual liberty being subsumed by social control. * The learned senior Counsel emphasized on the seriousness of the present matter, stating that such restrictions on the fundamental rights is the reason for the placement of Article 32 of the Constitution in Part III, as a fundamental right which allows for the enforcement of the other fundamental rights. He referred to the Constituent Assembly debates to highlight the import of Article 32, as contemplated by the Members of the Constituent Assembly. * The learned senior Counsel also placed before this Court the Government of India National Telecom Policy, 2012, and submitted that the wide restrictions imposed by the State are in contravention of the aforementioned policy. He submitted that the freedom of speech and expression is meant to allow people to discuss the burning topic of the day, including the abrogation of Article 370 of the Constitution. * Lastly, the learned senior Counsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted f....
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....rguments, the learned senior Counsel wished to make certain submissions regarding the issue at hand. The learned senior Counsel submitted on behalf of the Petitioner that although he and his family were law abiding citizens, yet they are suffering the effects of the restrictions. Citing the House of Lords judgment of Liversidge v. Anderson, (1941) 3 All ER 338 the learned senior Counsel submitted that it was the dissent by Lord Atkin, upholding the fundamental rights of the citizens of the United Kingdom, which is now the law of the land. Mr. K.K. Venugopal, Learned Attorney General for the Union of India * The learned Attorney General supported the submissions made by the Solicitor General. He submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account. Relying on National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, the learned Attorney General submitted that this Court while deciding the aforementioned case, has taken cognizance of the problem of terrorism in the State before. * According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism....
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.... threat perception. Restrictions were never imposed in the Ladakh region. This fact shows that there was application of mind while passing the orders by the officers on the ground, and that there was no general clampdown, as is being suggested by the Petitioners. * Further, the learned Solicitor General pointed to various figures to indicate that people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the Petitioner in W.P. (C) No. 1031 of 2019 is situated. The learned Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the populace. * The learned Solicitor General submitted that orders passed Under Section 144, Code of Criminal Procedure can be preventive in nature, in order to prevent danger to public safety. The Magistrate can pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be considered keeping in mind the history and the background of the State. * Relying ....
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....e jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed one-way communication, the internet makes two-way communication by which spreading of messages are very easy. The different context should be kept in mind by the Court while dealing with the restrictions with respect to the two media. * While referring to various photographs, tweets and messages of political leaders of Kashmir, he stated that these statements are highly misleading, abrasive and detrimental to the integrity and sovereignty of India. * Further, it is not possible to ban only certain websites/parts of the Internet while allowing access to other parts. Such a measure was earlier attempted in 2017, but it was not successful. * Lastly, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in compliance with the procedure in the Suspension Rules, and are being reviewed strictly in terms of the same. 9. Some of the intervenors have supported the submissions made by the learned Attorney General and the Solicitor General, and indic....
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....of 2019, a prayer has been made to issue a writ of mandamus or any other writ directing Respondent Nos. 1 and 2 to produce all orders by which movement of all persons has been restricted since 04.08.2019. Further, production of all orders by way of which communication has been blocked in State of Jammu and Kashmir has also been sought. 14. On the obligation of the State to disclose information, particularly in a writ proceeding, this Court in Ram Jethmalani v. Union of India, (2011) 8 SCC 1, observed as follows: 75. In order that the right guaranteed by Clause (1) of Article 32 be meaningful, and particularly because such petitions seek the protection of fundamental rights, it is imperative that in such proceedings the Petitioners are not denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State. 15. We may note that there are two separate types of reasoning that mandates us to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the....
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.... AND RESTRICTIONS THEREOF 19. The Petitioners have contended that the impugned restrictions have affected the freedom of movement, freedom of speech and expression and right to free trade and avocation. In this context, we have to first examine the nature of the fundamental rights provided under the Constitution. 20. The nature of fundamental rights under Part III of the Constitution is well settled. The fundamental rights are prescribed as a negative list, so that "no person could be denied such right until the Constitution itself prescribes such limitations". The only exception to the aforesaid formulation is Article 21A of the Constitution, which is a positive right that requires an active effort by the concerned government to ensure that the right to education is provided to all children up to the age of 16 years. 21. The positive prescription of freedom of expression will result in different consequences which our own Constitution has not entered into. Having different social and economic backgrounds and existing on a different scale of development, the human rights enshrined therein have taken a different role and purpose. The framers of the Indian Constitution were ....
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....nt of the right nor can it justify its denial. [refer to Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161; Shreya Singhal v. Union of India,: (2015) 5 SCC 1]. 26. The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express v. Union of India, (1985) 1 SCC 641, wherein this Court had declared that the freedom of print medium is covered under the freedom of speech and expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed Under Article 19(1)(a), which can be curtailed only under circumstances set out Under Article 19(2). Further, this Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information & Broadcasting, Government of India (supra). In this context, we may note that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and,....
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....to an offence. 30. The right provided Under Article 19(1) has certain exceptions, which empowers the State to impose reasonable restrictions in appropriate cases. The ingredients of Article 19(2) of the Constitution are that: a. The action must be sanctioned by law; b. The proposed action must be a reasonable restriction; c. Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. 31. At the outset, the imposition of restriction is qualified by the term 'reasonable' and is 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. Reasonability of a restriction is used in a qualitative, quantitative and relative sense. 32. It has been argued by the counsel for the Petitioners that the restrictions Under Article 19 of the Constitution cannot mean com....
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....nts of terrorist violence, 14,038 civilians have died, 5292 security personnel were martyred, 22,536 terrorists were killed. The geopolitical struggle cannot be played down or ignored. In line with the aforesaid requirement, we may note that even the broadest guarantee of free speech would not protect the entire gamut of speech. The question which begs to be answered is whether there exists a clear and present danger in restricting such expression. 36. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public Policy, Pepperdine University, states in his Article about propaganda and the use of internet in the following manner: Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that has far-reaching consequences. Becau....
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....However, we need to refer to the context and state of law in the US, before we can understand such an assertion. 39. During the US civil war, a dramatic confrontation over free speech arose with respect to the speech of Clement L. Vallandigham, who gave a speech calling the civil war 'wicked, cruel and unnecessary'. He urged the citizens to use ballot boxes to hurl 'President Lincoln' from his throne. As a reaction, Union soldiers arrested Mr. Vallandigham and he had to face a five-member military commission which charged him with 'declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion'. [Ex parte Vallandigham, 28 F. Cas. 874 (1863)] The commission found Mr. Vallandigham guilty and imposed imprisonment during the war. The aforesaid imprisonment was met with demonstrations and publications calling such imprisonment as a crime against the US Constitution. President Lincoln, having regard to the US Constitution, commuted the imprisonment and converted the same to banishment. He justified the aforesaid act by stating that banishment was more humane and a ....
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....d, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations. 43. During the Vietnam war, the US Supreme Court had to deal with the case of Brandenburg v. Ohio, 395 US 444 (1969), wherein the Court over-ruled Dennis (supra) and held that the State cannot punish advocacy of unlawful conduct, unless it is intended to incite and is likely to incite 'imminent lawless action'. 44. There is no doubt that the events of September 2011 brought new challenges to the US in the name of 'war on terror'. In this context, Attorney General John Ashcroft stated that "To those... who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies...'.5 However, Bruce Ackerman, in his article,6 states that: The "war on terrorism" has paid enormous political dividends.... but that does not make it a compelling legal concept. War is traditionally defined as a state of belligerency between sovereigns.... The selective adaptation of doctrines dea....
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..... The proportionality principle, can be easily summarized by Lord Diplock's aphorism 'you must not use a steam hammer to crack a nut, if a nutcracker would do?' [refer to R v. Goldsmith, [1983] 1 WLR 151, 155 (Diplock J)]. In other words, proportionality is all about means and ends. 51. The suitability of proportionality analysis under Part III, needs to be observed herein. The nature of fundamental rights has been extensively commented upon. One view is that the fundamental rights apply as 'rules', wherein they apply in an 'all-or-nothing fashion'. This view is furthered by Ronald Dworkin, who argued in his theory that concept of a right implies its ability to trump over a public good.8 Dworkin's view necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest norm under the Constitution. This would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Cour....
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....important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.... A Constitution Bench of this Court in Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853 while determining rights Under Article 19(1)(g) of the Constitution, discussed the doctrine of proportionality in the aforesaid terms: 10. ... The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the c....
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....In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in Clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon--of both the right and its limitation in the Constitution-- exemplifies the inherent tension between democracy's two fundamental elements... 55. In the aforesaid case, this Court was posed with a dilemma as to how to treat competing rights. The Court attempted to resolve the conflict by holding that rights and limitations must be interpreted harmoniously so as to facilitate coexistence. This Court observed therein: 62. ... On the one hand is the right's element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two co....
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....der this approach, any goal which is legitimate will be accepted; as usually a lesser restrictive measure might have the disadvantage of being less effective and even marginal contribution to the goal will suffice the rational connection test.14 57. The aforesaid test needs to be contrasted with its Canadian counterpart also known as the Oakes test. According to the said doctrine, the object of the measure must be compelling enough to warrant overriding of the constitutionally guaranteed freedom; a rational nexus must exist between such a measure and the object sought to be achieved; the means must be least restrictive; and lastly, there must be proportionality between the effects of such measure and the object sought to be achieved. This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can) SC, in the following words (at p. 138): To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed t....
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....v) there needs to be a proper relation ("proportionality stricto sensu" or "balancing") between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. 60. In Modern Dental College case (supra), this Court also went on to analyse that the principle of proportionality is inherently embedded in Indian Constitution under the realm of the doctrine of reasonable restrictions and that the same can be traced Under Article 19. The relevant extracts are placed below: 65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read Clause (1) along with Clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression "reasonable restriction" seeks to strike a balance between the freedom guaranteed by any of the Sub-clauses of Clause (1) of Article 19 and the social control permitted by any of the Clauses (2) to (6). It is held that the expression "reasonable" connotes that the limitation imposed on a person in the enjoyment of the ....
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....while the latter applies the "minimal impairment test" narrowing the constitutionally permissible policies and places a strong burden on the Government to justify its policies. Therefore, Bilchitz argues that if the necessity stage is interpreted strictly, legislations and policies no matter how well intended will fail to pass the proportionality inquiry if any other slightly less drastic measure exists. Bilchitz, therefore, indicates that Alexy's conclusion may be too quick. 64. Moreover, this also leads to the issue regarding the doctrine of separation of power, as Courts would often substitute the views of the legislature in deciding what is the "least restrictive measure". Taking the aforesaid issues into consideration, Bilchitz proposed a moderate interpretation of the necessity test wherein Courts may no longer be required to assess policies and measures against impractical and unreasonable standards. He states that "[n]ecessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. That process thus requires courts to reason through the variou....
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.... College & Research Centre v. State of M.P., (2016) 7 SCC 353], four sub-components of proportionality which need to be satisfied were taken note of. These are: (a) A measure restricting a right must have a legitimate goal (legitimate goal stage) (b) It must be a suitable means of furthering this goal (suitability or rational connection stage). (c) There must not be any less restrictive but equally effective alternative (necessity stage). (d) The measure must not have a disproportionate impact on the right-holder (balancing stage). 158. This has been approved in K.S. Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of course, while undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to....
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....tal right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law. Sanjay Kishan Kaul, J., in his concurring opinion, suggested a four-pronged test as follows: (SCC p. 632, para 638) (i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference. 68. After applying the aforesaid doctrine in deciding the constitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in the K.S. Puttaswamy (Aadhaar-5J.) case (supra), reiterated the fundamental precepts of doctrine of proportionality in relation to protection of privacy interests while dealing with personal data: 1324. The fundamental precepts of proportionality, as they emerge from decided cases can be formulated thus: 1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate S....
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.... 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. 71. The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation. 72. 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 territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed. 73. In this context, we need to note that the Petitioner....
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....e sacrificed on the altar of substantive justice. There is a need for procedural justice in cases relating to restrictions which impact individuals' fundamental rights as was recognized by this Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and the K.S. Puttaswamy (Privacy-9J.) case (supra). 80. The procedural mechanism contemplated for restrictions on the Internet, is twofold: first is contractual, relating to the contract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973 and the Telegraph Act. In the present case, we are concerned only with the statutory scheme available, particularly under the Telegraph Act, and we will therefore confine our discussion mostly to the same. However, as it would be apposite to distinguish between the different statutory mechanisms, we would touch upon these cursorily. 81. Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. This Co....
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....ens. It may be mentioned here that we are not concerned with the constitutionality of the Suspension Rules, and arguments on the same were not canvassed by either side. As such, we are limiting our discussion to the procedure laid down therein. Rule 2 lays down the procedure to be followed for the suspension of telecom services, and merits reproduction in its entirety: 2.(1) Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent authority), and in unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be: Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the S....
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.... the directions issued Under Sub-rule (1) are in accordance with the provisions of Sub-section (2) of Section 5 of the said Act. 85. Rule 2(1) specifies the competent authority to issue an order under the Suspension Rules, who in ordinary circumstances would be the Secretary to the Ministry of Home Affairs, Government of India, or in the case of the State Government, the Secretary to the Home Department of the State Government. The Sub-rule also provides that in certain "unavoidable" circumstances an officer, who is duly authorised, not below the rank of a Joint Secretary, may pass an order suspending services. The two provisos to Rule 2(1) are extremely relevant herein, creating an internal check as to orders which are passed by an authorised officer in "unavoidable" circumstances, as opposed to the ordinary mechanism envisaged, which is the issuing of the order by the competent authority. The provisos together provide that the orders passed by duly authorised officers in "unavoidable" circumstances need to be confirmed by the competent authority within twenty-four hours, failing which, as per the second proviso, the order of suspension will cease to exist. The confirmation of ....
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....rovisions of the main statute, viz., Section 5(2) of the Telegraph Act. 89. This last requirement, of the orders issued under the Rules being in accordance with Section 5(2), Telegraph Act, is very relevant to understand the circumstances in which the suspension orders may be passed. Section 5(2), Telegraph Act is as follows: 5. Power for Government to take possession of licensed telegraphs and to order interception of messages xxx (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted ....
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....to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section... 91. The aforementioned case was followed in People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, in the context of phone-tapping orders passed Under Section 5(2) of the Telegraph Act, wherein this Court observed as follows: 29. The first step Under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority Under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. 92. Keeping in mi....
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.... stage, before the power can be utilized under the aforesaid rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement. 95. A point canvassed by the learned Counsel for the Petitioner, Ms. Vrinda Grover, with regard to the interpretation of the proviso to Section 5(2) of the Telegraph Act. The proviso to the Section specifies that a class of messages, i.e., press messages intended to be published in India of correspondents accredited to the Central Government or a State Government, will be treated differently from other classes of messages. The learned Counsel contended that this separate classification necessitates that an order interfering with the press would be in compliance with Section 5(2) of the Telegraph Act only if it specifically states that the press is also to be restricted. However, the aforesaid interpretation could not be supported by the Petitioner with any judgments of this Court. 96. It must be noted that although the Suspension Rules does not provide for publica....
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....e of the word "temporary" in the title of the Suspension Rules. Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier Section of the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this context, it is necessary to lay down some procedural safeguard till the aforesaid deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is not disproportionate. We therefore direct that the Review Committee constituted Under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements Under Rule 2(6). The Review Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. We clarify that looking to the fact that the rest....
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....ely cause disturbance of the public tranquillity, and the Government could not have passed such orders in anticipation or on the basis of a mere apprehension. 104. In response, the learned Solicitor General, on behalf of the Respondent, argued that the volatile history, overwhelming material available even in the public domain about external aggressions, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders Under Section 144, Code of Criminal Procedure. 105. These contentions require us to examine the scope of Section 144, Code of Criminal Procedure, which reads as follows: 144. Power to issue order in urgent cases of nuisance or apprehended danger.--(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by S....
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....g. 106. Section 144, Code of Criminal Procedure is one of the mechanisms that enable the State to maintain public peace. It forms part of the Chapter in the Code of Criminal Procedure dealing with "Maintenance of Public Order and Tranquillity" and is contained in the sub-chapter on "urgent cases of nuisance or apprehended danger". The structure of the provision shows that this power can only be invoked in "urgent cases of nuisance or apprehended danger". 107. Section 144, Code of Criminal Procedure enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused, viz.-prior inquiry before exercising this power, setting out material facts for exercising this power and modifying/rescinding the order when the situation so warrants. 108. The aforesaid safeguards in Section 144, Code of Criminal Procedure are discussed below and deserve close scrutiny. (a) Prior Inquiry before issuing Orde....
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....e concerned Magistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration. (e) Act Judicially while Rescinding or Modification of the Order: The Magistrate can rescind or alter any order made by him on his own or on an application by any aggrieved person. Similarly, the State Government may also on its own motion rescind or alter any order passed by it, extending an order passed Under Section 144, Code of Criminal Procedure While considering any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously. 109. Section 144, Code of Criminal Procedure has been the subject matter of several Constitution Bench rulings and we will briefly examine them. The constitutional validity of Section 144, Code of Criminal Procedure under the predecessor of the 1898 Act came up for the first time before the Constitution Bench of this Court in Babulal Parate case (supra). Repelling the contention that it is an infringement of....
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....e of an order issued Under Section 144, Code of Criminal Procedure, the validity of such an order Under Section 144, Code of Criminal Procedure can be challenged even at that stage. 110. The validity of the Section 144(6) under the 1898 Act again came up for consideration before a Bench of five Judges in State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337. The majority judgment declared the latter part of Section 144(6), Code of Criminal Procedure as it then existed, which enabled the State Government to extend an order passed Under Section 144, Code of Criminal Procedure indefinitely, as unconstitutional, since it did not provide limitations on the duration of the order and no mechanism was provided therein to make a representation against the duration of the order. Under the 1973 Act, a time limit has been prescribed on the maximum duration of the order. 111. A Bench of seven Judges in the Madhu Limaye case (supra) was constituted to re-consider the law laid down in Babulal Parate (supra) and the constitutional validity of Section 144, Code of Criminal Procedure This Court, while affirming the constitutional validity of Section 144, Code of Criminal Procedure reiterated th....
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....er Section 144, Code of Criminal Procedure can be exercised. This Court held as under: 3....It is only where it is not practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken Under Section 144 of the Code of Criminal Procedure which may interfere with what are, otherwise, completely legal and permissible conduct and speech. 4. ....It may however be noted that the Magistrate is not concerned with individual rights in performing his duty Under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. 5. ... If public peace and tranquillity or other objects mentioned there are not in danger the Magistrate concerned cannot act Under Section 144. He could only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquillity are in danger, it is left to the Magistrate concerned to take proper action Under Section 144, Code of Criminal Procedure. 113. In Gulam Abbas v. State of Uttar Pradesh, (1....
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.... The scheme of that Section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code. 115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court emphasised the safeguards Under Section 144, Code of Criminal Procedure and the circumstances under which such an order can be issued. 116. The learned Counsel on behalf of the Petitioners vehemently contested the power of the Magistrate to pass the aforesaid orders Under Section 144, Code of Criminal Procedure as there existed no incumbent situation of emergency. It was argued that such orders passed in mere anticipation or apprehension cannot be sustained in the eyes of law. As explained above, the power Under Section 144, Code of Criminal Procedure is a preventive power to preserve public order. In Babulal Parate case (supra), this Court expressly clarified that this....
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.... 1966 SC 740, wherein this Court emphasised the difference between "public order" and "law and order" situation. This Court observed as under: 55. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a Clause to the Defence of India Rules. 121. This Court therein held that a mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order. Similarly, the seven-Judge Bench in Madhu Limaye case (supra) further elucidated as to w....
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....t Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144-A Code of Criminal Procedure, which itself was introduced by Act 25 of 2005 [Ed.: The Code of Criminal Procedure (Amendment) Act, 2005.], the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order. ... 123. In view of the above, 'law and order', 'public order' and 'security of State' are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situat....
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....he right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty... 58. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility. 126. As discussed above, the decisions of this Court in the Modern Dental College case (supra) and K.S. Puttaswamy (Aadhaar-5J.) case (supra), which brought the concept of proportionality into the fold, equally apply to an order passe....
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....44, Code of Criminal Procedure have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or un-notified. This Court, in the case of Babulal Parate (supra), also stressed upon the requirement of having the order in writing, wherein it is clearly indicated that opinion formed by the Magistrate was based upon the material facts of the case. This Court held as under: 9. Sub-section (1) confers powers not on the executive but on certain Magistrates...Under Sub-section (1) the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable. Again the Sub-section requires the Magistrate to make an order in writing and state therein the mater....
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....s well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences it may result in if not prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life-preservation of public order and Rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of courts unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of t....
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....such stand, we have not gone into the adequacy of the material placed before this Court; rather, we have presumed existence of the same. 136. One of the important criteria to test the reasonableness of such a measure is to see if the aggrieved person has the right to make a representation against such a restriction. It is a fundamental principle of law that no party can be deprived of his liberty without being afforded a fair, adequate and reasonable opportunity of hearing. Therefore, in a situation where the order is silent on the material facts, the person aggrieved cannot effectively challenge the same. Resultantly, there exists no effective mechanism to judicially review the same. [See State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the same, it is imperative for the State to make such orders public so as to make the right available Under Section 144(5), Code of Criminal Procedure a practical reality. 137. One thing to remember is that no mala fide has been alleged by the Petitioners. It was not denied by the Petitioners that the State has the power to pass such restrictive order. Additionally, the Respondents contended that the historical background of....
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....f any democratic rights. iii. An order passed Under Section 144, Code of Criminal Procedure should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. iv. While exercising the power Under Section 144, Code of Criminal Procedure the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. v. Repetitive orders Under Section 144, Code of Criminal Procedure would be an abuse of power. H. FREEDOM OF THE PRESS 141. The Petitioner in W.P. (C) No. 1031 of 2019 has filed the petition basing her contention on the following factual premise, as averred: 13. Writ Petition (Civil) No. 1031 of 2019 was filed on 10-08-2019 Under Article 32 of the Constitution of India by the Executive Editor of the newspaper "Kashmir Times", which publishes two editions daily, one from Jammu and another from Srinagar.....
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....traveling across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdown-including communication and internet blackout-and severe curbs on movement enforced by the Respondents, the Petitioner was prevented and hindered from carrying out her profession and work. Even after 11-10-2019 only a truncated copy of the newspaper is being published because of the severe restrictions in place even today (internet services and SMS services are completely shut down even after 115 days). The new portal/website is frozen till date. 142. There is no doubt that the importance of the press is well established under Indian Law. The freedom of the press is a requirement in any democratic society for its effective functioning. The first case which dealt with the freedom of the press can be traced back to Channing Arnold v. The Emperor, (1914) 16 Bom LR 544, wherein the Privy Council stated that: 36. The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range ....
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....he usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be constitutional, but which imposes a great burden on the free speech. We may note that the argument of chilling effect, if not tempered judicially, would result in a "self-proclaiming instrument". 148. The principle of chilling effect was utilized initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment.21 This analysis was replicated in the context of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon concerns have been accepted in the case of K.S. Puttaswamy (Privacy-9J.) (supra). 149. We need to concern ourselves herein as to theoretical question of drawing lines as to when a Regulation stops short of impinging upon free speech. A regulatory legislation will have a direct or indirect impact on various rights of different degrees. Individual r....
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....red to see whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06-08-2019 to 11-10-2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and considering that the aforesaid Petitioner has now resumed publication, we do not deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely. I. CONCLUSION 152. In this view, we issue th....