TaxTMI 
TaxTMI 
2020 (1) TMI 1387
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. 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, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued 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 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 comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ake 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 further developments have taken place and some of the restrictions imposed have been relaxed, particularly with reference to mobile connectivity as well as the landlines services etc. and, therefore, he wants to f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ure. * 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 Petitioner in W.P. (C) No. 1164 of 2019 * Learned senior Counsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. * It was submitted that the conduct of the State, in pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 measure" that can be passed. The learned senior Counsel submitted that while imposing restrictions, the rights of individuals need to be balanced against the duty of the State to ensure security. The State must ensure that measures are in place that allows people to continue with their life, such as public transportation for work and schools, to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 for more than 100 days, which fact should be taken into account by this Court while deciding the matter. Ms. Meenakshi Arora, Senior Counsel for the Intervenor in I.A. No. 140276 in W.P. (C) No. 1031 of 2019 * Learned senior Counsel submitted that Articles 19 and 21 of the Constitution require that any action of the State must demonstrate five essential features: (a) backing of a law',....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng 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 and internal militancy, it would have been foolish to have not taken any preventive measures in the circumstances. The necessity of the orders Under Section 144, Code of Criminal Procedure are apparent from the background facts and circumstances, when there can be huge violence if the Government did not take these kinds of measures. In fact, similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State. Mr. Tushar Meht....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing 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 on Babulal Parate v. State of Bombay AIR 1960 SC 51, and Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) 3 SCC 746, the learned Solicitor General submitted that the situation in the State of Jammu and Kashmir was such that the orders could be justified in view of maintenance of the "security of the State". Regarding the Petitioners' submission that the restrictions could have been imposed on specific individuals, the learned Solicitor General submitted that it was impossible to segregate, and contro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asive 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 indicated that the restrictions were necessary and in compliance with the law. They have also submitted that normalcy is returning in the State of Jammu and Kashmir, and that the present petitions are not maintainable. C. ISSUES 10. In line with aforesaid facts and arguments, the following questions of law arise for our consideration: I. Whether the Government can claim exemption from producing all the orders passed Under Section 144, Code of Criminal Procedure and other orders under the Suspension Rules? II. Whether the freedom of speech and expressio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cularly 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 right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner. 16. Second, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 aware of the situation of India, including the socio-economic costs of such proactive duty, and thereafter took an informed decision to restrict the application of fundamental rights in a negative manner. This crucial formulation is required to be respected by this Court, which has to uphold the constitutional morality behind utilization of such negative prescriptions. 22. Now, we need to concern ourselves about the freedom of expression over the medium of internet. There is no gainsaying that in today's world the internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cybe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution. 27. In this context, we need to note that the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....striction 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 complete prohibition. In this context we may note that the aforesaid contention cannot be sustained in light of a number of judgments of this Court wherein the restriction has also been held to include complete prohibition in appropriate cases. [Madhya Bharat Cotton Association Ltd. v. Union of India AIR 1954 SC 634, Narendra Kumar v. Union of India, (1960) 2 SCR 375, State of Maharashtra v. Himmatbhai Narbheram Rao, (1969) 2 SCR 392, Sushila Saw Mill v. State of Orissa, (1995) 5 SCC 615, Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 and Dharam Dutt v. Union of India, (2004) 1 SCC 712]. 33. The study of aforesaid case law points to three propositions which emerge with res....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eading 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. Because internet postings are not regulated sources of news, they can reflect any viewpoint, truthful or not. Thus, readers tend to consider internet items to be fact, and stories can go unchecked for some time. Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda. 37. Susan W. Brenner,4 NCR Distinguished Professor of Law and Technology, University of Dayton School of Law, also notes that the traditional approach has not worked satisfactorily on terrorism due to the proliferation of the internet. It is the contention of the Respondents that the restriction on the fre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bellion'. [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 less disagreeable means of securing least restrictive measures. 40. During World War I, many within the US had strong feelings against the war and the draft imposed by the administration of President Woodrow Wilson. During this period, the US enacted the Espionage Act, 1917 which penalised any person who wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services. In any case, in Abraham v. United States, 250 U.S. 616 (1919), Justice Holmes even in his dissent observed as under: I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s: 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 dealing with war predictably leads to sweeping incursions on fundamental liberties. 45. From the aforesaid study of the precedents and facts, we may note that the law in the US has undergone lot of changes concerning dissent during war. The position that emerges is that any speech which incites imminent violence does not enjoy constitutional protection. 46. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed Under Article 19(1)(a) if the need be so, in compliance with the requirements Under Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Courts, the same may not be completely suitable in the Indian context, having regard to the structure of Part III which comes with inbuilt restrictions. 52. However, there is an alternative view, held by Robert Alexy, wherein the 'fundamental rights' are viewed as 'principles',9 wherein the rights are portrayed in a normative manner. Rules are norms that are always either fulfilled or not; whereas principles are norms which require that something be realized to the greatest extent possible given the legal and factual possibilities.10 This characterisation of principles has implications for how to deal with conflicts between them: it means that where they conflict, one principle has to be weighed against the other and a determination has to be made as to whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... ... 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 citizen's freedom ... the possibility of achieving the object by imposing a less drastic restraint ... or that a less drastic restriction may ensure the object intended to be achieved. In the case of Om Kumar v. Union of India, (2001) 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as follows: 28. By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the "losing" facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy's different facets is a "constructive tension". It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects--rights on the o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" ... Second ... the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test"... Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be ... rationally connected to the objective. Second, the means ... should impair "as little as possible" the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Chart....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n" 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 right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC 33). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731). 61. Thereafter, a comprehensive doctrine of proportionality in line with the German approach was propounded by this Court in the Modern Dental College case (supra) wherein the Court held that: 63. In this direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds. 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 various stages of the moderate interpretation of necessity."18 He therefore recommends a four-step inquiry which is listed below:18 (MN1) All feasible alternatives need to be identified, with courts being explicit as to criteria of feasibility; (MN2) The relationship between the government measure under consideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner; (MN3) The differing impact of the measure and the alternatives (identified in MN2) upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact; and (MN4) Given the findings in MN2 and MN3, an overall comparison (and balancing exercise) must be undertaken between the measure and the alternativ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 proceed on that very basis which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353] and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted. 67. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar-5J.) (supra), made observations on the test of proportionality that needs to be satisfied under our Constitution for a violation of the right to privacy to be justified, in the following words: 1288. In K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, 2017) 10 SCC 1], one of us (Chandrachud, J.), speaking for four Judges, laid down the tests that would need to be satisfied under o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ge from decided cases can be formulated thus: 1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim; 1324.2. The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved; 1324.3. The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim; 1324.4. Restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and 1324.5. The State must provide sufficient safeguards relating to the storing and protection of centrally stored data. In order to prevent arbitrary or abusive interference with privacy, the State must guarantee that the collection and use of personal information is based on the consent of the individual; that it is authorised by law and that sufficient safeguards exist to ensure that the data is only used for the purpose specified at the time of collection. Ownership of the dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....east restrictive measure before being imposed. 73. In this context, we need to note that the Petitioners have relied on a recent judgment of the High Court of Hong Kong, in Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820 to state that the Hong Kong High Court has utilised the principle to declare the "anti-mask" law as unconstitutional. In any case, we need not comment on the law laid down therein, as this Court has independently propounded the test of proportionality as applicable in the Indian context. However, we may just point out that the proportionality test needs to be applied in the context of facts and circumstances, which are very different in the case at hand. 74. Having observed the law on proportionality and reasonable restrictions, we need to come back to the application of restrictions on the freedom of speech over the internet. 75. The Respondent-State has vehemently opposed selective access to internet services based on lack of technology to do the same. If such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time. Such complete blocking/prohibition perpetually cannot be acce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Information by Public) Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case (supra), upheld the constitutional validity of this Section and the Rules made thereunder. It is to be noted however, that the field of operation of this Section is limited in scope. The aim of the Section is not to restrict/block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section. 82. Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed Under Section 144, Code of Criminal Procedure, a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger. In 2015, the High Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of Gujarat, in Writ Petition (PIL) No. 191 of 2015, considered a challenge to an order Under Section 144, Code of Criminal Procedure blocking access to mobile internet services in the State of Gujarat. The High Court of Gujarat, vide order dated 15.09.2015, upheld the restriction imp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order: Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours. (2) Any order issued by the competent authority Under Sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day. (3) The directions for suspension issued Under Sub-rule (1) shall be conveyed to designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses Under Section 4 of the said Act, in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic communication and its implementation shall be determined by the telegraph authority. (4) The telegraph authority and service providers shall designate officers....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al, failing which the order passed by a duly authorised officer will automatically lapse by operation of law. 86. Rule 2(2) is also extremely important, as it lays down twin requirements for orders passed Under Rule 2(1). First, it requires that every order passed by a competent authority Under Rule 2(1) must be a reasoned order. This requirement must be read to extend not only to orders passed by a competent authority, but also to those orders passed by an authorised officer which is to be sent for subsequent confirmation to the competent authority. The reasoning of the authorised officer should not only indicate the necessity of the measure but also what the "unavoidable" circumstance was which necessitated his passing the order. The purpose of the aforesaid Rule is to integrate the proportionality analysis within the framework of the Rules. 87. Only in such an event would the requirement of confirmation by the competent authority have any meaning, as it would allow the competent authority to properly consider the action taken by the authorised officer. Further, the confirmation must not be a mere formality, but must indicate independent application of mind by the competent aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this Sub-section. 90. This Court has had prior occasion to interpret Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128, a Four-Judge Bench of this Court interpreted Section 5 of the Telegraph Act and observed as follows: 13. Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/specially authorised officer to take possession of any telegraphs. Firstly, the occurrence of a "public emergency" is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this Section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a pre-requi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....site for an order to be passed under this Sub-section, and therefore the Suspension Rules, is the occurrence of a "public emergency" or for it to be "in the interest of public safety". Although the phrase "public emergency" has not been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in conjunction with the phrase "in the interest of public safety" following it. The Hukam Chand Shyam Lal case (supra) further clarifies that the scope of "public emergency" relates to the situations contemplated under the Sub-section pertaining to "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". 93. The word 'emergency' has various connotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, notes that '[I]n time o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e that affects lives, liberty and property of people, must be made available. Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or Rule prescribes the same or not. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism. [See B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658] 97. The above requirement would further the rights of an affected party to challenge the orders, if aggrieved. Judicial review of the orders issued under the Suspension Rules is always available, although no appellate mechanism has been provided, and the same cannot be taken away or made ineffective. An aggrieved person has the constitutional right to challenge the orders made under the Suspension Rules, before the High Court Under Article 226 of the Constitution or other appropriate forum. 98. We also direct that all the above procedural safeguards, as elucidated by us, need to be mandatorily followed. In this context, this Court in the Hukam Chand Shyam Lal case (supra), observed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is necessary. 101. Coming to the orders placed before us regarding restrictions on communication and Internet, there are eight orders that are placed before us. Four orders have been passed by the Inspector General of Police, of the respective zone, while the other four orders are confirmation orders passed by the Principal Secretary to the Government of Jammu and Kashmir, Home Department, confirming the four orders passed by the Inspector General of Police. 102. The learned Solicitor General has apprised the Bench that the authorities are considering relaxation of the restrictions and in some places the restrictions have already been removed. He also pointed that the authorities are constantly reviewing the same. In this case, the submission of the Solicitor General that there is still possibility of danger to public safety cannot be ignored, as this Court has not been completely apprised about the ground situation by the State. We believe that the authorities have to pass their orders based on the guidelines provided in this case afresh. The learned Solicitor General had submitted, on a query being put to him regarding the feasibility of a measure blocking only social media ser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. (2) An order under this Section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this Section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this Section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this Section shall remain in force for such further period not exceeding six months from the date on which the order made by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ision i.e. the order is likely to prevent obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity; and ii. Immediate prevention or speedy remedy is desirable. The phrase "opinion" suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power conferred under this provision. (b) Content of the Order: Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the "material facts" of the case. The "material facts" must indicate the reasons which weighed with the Magistrate to issue an order Under Section 144, Code of Criminal Procedure. (c) Communication of the Order: The Order must be served in the manner provided Under Section 134, Code of Criminal Procedure, i.e., served on the person against whom it is made. If such a course of action is not practicable, it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t must be preceded by an inquiry. b. Although Section 144, Code of Criminal Procedure confers wide powers, it can only be exercised in an emergency, and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Section 144, Code of Criminal Procedure is not an unlimited power. c. The Magistrate, while issuing an order, has to state the material facts upon which it is based. Since the order states the relevant facts, the High Court will have relevant material to consider whether such material is adequate to issue Section 144, Code of Criminal Procedure order. While considering such reasons, due weight must be given to the opinion of the District Magistrate who is responsible for the maintenance of public peace in the district. d. This power can be exercised even when the Magistrate apprehends danger. It is not just mere "likelihood" or a "tendency", but immediate prevention of particular acts to counteract danger. e. Even if certain Sections of people residing in the particular area are disturbing public order, the Magistrate can pass an order for the entire area as it is difficult for the Magistrate to disting....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the consequences sufficiently grave" (b) exercised in a judicial manner which can withstand judicial scrutiny. This Court observed that: 24. The gist of action Under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte. it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order Under Section 144, Code of Criminal Procedure cannot be passed without taking evidence: ... These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncy of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. .... In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the admi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger. 117. In view of the language of the provision and settled law, we are unable to accept the aforesaid contention. 118. Further, learned senior Counsel Mr. Kapil Sibal expressed his concern that in the future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections. In this context, it is sufficient to note that the power Under Section 144, Code of Criminal Procedure cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Code of Criminal Procedure unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, Code of Criminal Procedure will only be applicable in a situation of emergency and for the purpose of preventing obstr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application.... Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the Section and the validity of this part need not be decided here. In so far as the other parts of the Section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The Section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Under Section 144, Code of Criminal Procedure cannot be issued against the public generally and must be specifically intended against the people or the group which is apprehended to disturb the peace and tranquillity. This Court in the Madhu Limaye case (supra), has clarified that such an order can be passed against either a particular individual or the public in general. This Court was aware that, at times, it may not be possible to distinguish between the subject of protection under these orders and the individuals against whom these prohibitory orders are required to be passed: 27. ... Ordinarily the order would be directed against a person found acting or likely to act in a particular way. A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law. 125. The counsel on behalf of the Petitioners have argued that the validity of the aforesaid restrictions has to be tested on its rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulation on the ground to suggest abrogation of Article 370, and the respective Magistrates, being aware of the circumstances, imposed the aforesaid restrictions in a periodic manner, indicating due application of mind. The learned Solicitor General further argued that this Court cannot sit in appeal over the order passed by the magistrate, particularly when there is no imputation of mala fide. 128. To put a quietus to the aforesaid issue it is pertinent to reproduce and rely on a relevant extract from the Ramlila Maidan Incident, In re case (supra): 56. Moreover, an order Under Section 144 Code of Criminal Procedure being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of Code of Criminal Procedure, such an order is revisable and is subject to judicial review. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rity of the geographical area of the erstwhile State of Jammu and Kashmir was placed Under Orders passed Under Section 144, Code of Criminal Procedure and the passing of these orders need to be looked at in this perspective. In response, it is the case of the Respondent, although it has not been stated in clear terms, that it is an issue of national security and cross border terrorism. Before we part, we need to caution against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. 131. Although, the Respondents submitted that this Court cannot sit in appeal or review the orders passed by the executive, particularly those pertaining to law and order situation, the scope of judicial review with respect to law and order issues has been settled by this Court. In State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684, this Court observed, specifically in the context of Section 144, Code of Criminal Procedure, as follows: 6. Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owever, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. 133. In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures Under Section 144, Code of Criminal Procedure should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher. 134. An order passed Under Section 144, Code of Criminal Procedure should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....demic one, we cannot ignore non-compliance of law by the State. As learned senior Counsel Mr. Kapil Sibal submitted, this case is not just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this Court has to caution the Government. Hence, we direct that the authorities must follow the principles laid down by this Court and uphold the Rule of law. 139. It is contended by the Petitioners that while the Respondents stated that there are no prohibitory orders during the day and there are certain restrictions in certain areas during the night, on the ground, the situation is different as the police is still restricting the movement of the people even during the day. If that is so, it is not proper and correct for the State to resort to such type of acts. A Government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into consideration the rights of the citizens, and pass appropriate need-based orders. In view of the same, appropriate directions are provided in the operative part of this judgment. 140. Before parting we summa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s taken by the Respondents were communicated to the affected population, including the residents of the Kashmir Valley. This meant that the people of Kashmir were plunged into a communication blackhole and an information blackout. The actions of the Respondents have had a debilitating and crippling effect on newsgathering, reporting, publication, circulation and information dissemination, and have also resulted in freezing of web portals and news websites. 15. From the morning of 05-08-2019, with a heavy military presence, barricades and severance of all communication links, the state of Jammu and Kashmir was placed under de facto curfew. At the same time, on 05-08-2019, the Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272 was published in The Gazette of India, vide which under the powers vested by Article 370(1) of the Constitution of India, Article 367(4) was added to the Constitution. Also on 05-08-2019, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06-08-2019, the said Bill was passed by the Lok Sabha. The President's assent was given to the Bill on 09-08-2019. The Gazette Notification, dt. 09....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s (supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842 have expounded on the right of freedom of press and have clearly enunciated the importance of the aforesaid rights in modern society. In view of the same, there is no doubt that freedom of the press needs to be considered herein while dealing with the issue of the case at hand. 145. From the aforesaid factual averment, we may note that the Petitioner in W.P. (C) No. 1031 of 2019, with respect to the present issue, does not impugn any specific order of the government restricting the freedom of the press or restricting the content of the press. The allegation of the aforementioned Petitioner is that the cumulative effect of various other restrictions, such as the imposition of Section 144, Code of Criminal Procedure and restriction on internet and communication, has indirectly affected the freedom of the press in the valley. 146. There is no doubt that the freedom of the press is a valuable and sacred right enshrined Under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society. Squar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....adras AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee Cooper v. Union of India, 1970 (1) SCC 248, wherein the test of 'direct and inevitable consequence' was propounded. As this is not a case wherein a detailed analysis of chilling effect is required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect. 150. The widening of the 'chilling effect doctrine' has always been viewed with judicial scepticism. At this juncture, we may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the Respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the plea of the Respondent on the ground of lack of evidence to establish such a claim. The Court observed that: Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. Therefore, to say that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andate Under Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality. c. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration. e. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein. f. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we 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). g. We direct the Respondent State/competent authorities to review all orders suspending internet services forthwith. h. Orders not in accordance with th....