Liberty and security - Paradise on Earth - Section 144, Cr.P.C.
“Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this context, this Court’s job is compounded by the magnitude of the task before it. It goes without saying that this Court will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.
Liberty and security have always been at loggerheads.
comparative harm. In this framework, the Court is required to see whether
the impugned restrictions, due to their broadbased 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 06082019 to 11102019.
However, no evidence was put forth to establish that such other
individuals were also restricted in publishing newspapers in the
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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 selfserving 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 the following directions:
a. The Respondent State/competent authorities are directed to
publish all orders in force and any future orders under
Section 144, Cr.P.C and for suspension of telecom services,
including internet, to enable the affected persons to
challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and
the freedom to practice any profession or carry on any
trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamental
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rights should be in consonance with the mandate 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 the law laid down above,
must be revoked. Further, in future, if there is a necessity to
pass fresh orders, the law laid down herein must be
followed.
i. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites,
localized/limited ebanking facilities, hospitals services and
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other essential services, in those regions, wherein the
internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of
danger. However, the danger contemplated should be in the
nature of an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed.
k. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. 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.
m.While exercising the power under Section 144, Cr.P.C., the
Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
o. The Respondent State/competent authorities are directed to
review forthwith the need for continuance of any existing
orders passed under Section 144, Cr.P.C in accordance with
law laid down above.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1031 OF 2019
ANURADHA BHASIN …PETITIONER
VERSUS
UNION OF INDIA AND ORS. …RESPONDENT(S)
And
WRIT PETITION (CIVIL) NO. 1164 OF 2019
GHULAM NABI AZAD …PETITIONER
VERSUS
UNION OF INDIA AND ANR. …RESPONDENT(S)
JUDGMEN T
TABLE OF CONTENTS
Introduction A
Contentions B
Issues C
Production of Orders D
Fundamental Rights under Part III and restrictions
thereof
E
Internet Shutdown F
Restrictions under Section 144, Cr.P.C. G
1
REPORTABLE
Freedom of the Press H
Conclusion I
N. V. RAMANA, J.
A. INTRODUCTION
“It was the best of times, it was the worst
of times,
it was the age of wisdom, it was the age of
foolishness,
it was the epoch of belief, it was the epoch
of incredulity,
it was the season of Light, it was the
season of Darkness,
it was the spring of hope, it was the winter
of despair,
we had everything before us, we had
nothing before us,
we were all going direct to Heaven, we
were all going direct the other way
in short, the period was so far like the
present period, that some of its noisiest
authorities insisted on its being received,
for good or for evil, in the superlative
degree of comparison only.”
Charles Dickens in A Tale of Two Cities
2
1. Although cherished in our heart as a “Paradise on Earth”, the
history of this beautiful land is etched with violence and
militancy. While the mountains of Himalayas spell tranquillity,
yet blood is shed every day. In this land of inherent
contradictions, these petitions add to the list, wherein two sides
have shown two different pictures which are diametrically
opposite and factually irreconcilable. In this context, this Court’s
job is compounded by the magnitude of the task before it. It goes
without saying that this Court will not delve into the political
propriety of the decision taken herein, which is best left for
democratic forces to act on. Our limited scope is to strike a
balance between the liberty and security concerns so that the
right to life is secured and enjoyed in the best possible manner.
2. Liberty and security have always been at loggerheads. The
question before us, simply put, is what do we need more, liberty
or security? Although the choice is seemingly challenging, we
need to clear ourselves from the platitude of rhetoric and provide
a meaningful answer so that every citizen has adequate security
and sufficient liberty. The pendulum of preference should not
swing in either extreme direction so that one preference
3
compromises the other. It is not our forte to answer whether it is
better to be free than secure or be secure rather than free.
However, we are here only to ensure that citizens are provided all
the rights and liberty to the highest extent in a given situation
while ensuring security at the same time.
3. The genesis of the issue starts with the Security Advisory issued
by the Civil Secretariat, Home Department, Government of
Jammu and Kashmir, advising the tourists and the Amarnath
Yatris to curtail their stay and make arrangements for their
return in the interest of safety and security. Subsequently,
educational institutions and offices were ordered to remain shut
until further orders. On 04.08.2019, mobile phone networks,
internet services, landline connectivity were all discontinued in
the valley, with restrictions on movement also being imposed in
some areas.
4. On 05.08.2019, Constitutional Order 272 was issued by the
President, applying all provisions of the Constitution of India to
the State of Jammu and Kashmir, and modifying Article 367
(Interpretation) in its application to the State of Jammu and
Kashmir. In light of the prevailing circumstances, on the same
day, the District Magistrates, apprehending breach of peace and
4
tranquillity, imposed restrictions on movement and public
gatherings by virtue of powers vested under Section 144, Cr.P.C.
Due to the aforesaid restrictions, the Petitioner in W.P. (C) No.
1031 of 2019 claims that the movement of journalists was
severely restricted and on 05.08.2019, the Kashmir Times
Srinagar Edition could not be distributed. The Petitioner has
submitted that since 06.08.2019, she has 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 communication including internet,
mobile and fixed line telecommunication services have been shut
down or suspended or in any way made inaccessible or
unavailable in any locality. Further, the Petitioners sought the
issuance of an appropriate writ or direction directing
Respondents to immediately restore all modes of communication
including mobile, internet and landline services throughout
5
Jammu and Kashmir in order to provide an enabling
environment for the media to practice its profession. Moreover,
the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to pass
any appropriate writ or direction directing the Respondents to
take necessary steps for ensuring free and safe movement of
reporters and journalists and other media personnel. Lastly, she
also pleaded for the framing of guidelines ensuring that the rights
and means of media personnel to report and publish news is not
unreasonably curtailed.
6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164
of 2019), alleges that he was stopped from travelling to his
constituency in Jammu and Kashmir. In this context, he alleges
that due to the aforesaid restrictions, he is not able to
communicate with the people of his constituency.
7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad), was
listed before a Coordinate Bench of this Court on 16.09.2019,
the following order was passed:
“Issue notice.
We permit the petitioner to go to Srinagar and
visit the following districts, subject to
restrictions, if any:
(i) Srinagar, (ii) Anantnag, (iii) Baramulla and
(iv) Jammu.
6
The petitioner has undertaken before the Court
on his own volition that he will not indulge in
any political rally or political activity during his
visit. The visit will solely be concerned with
making an assessment of the impact of the
present situation on the life of the daily wage
earners, if any.
So far as prayers (2) and (3) of the writ petition
are concerned, the State as well as, the Union
of India will respond within two weeks hence.”
8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019, the
matter was ordered to be tagged along with W.P. (C) No. 1013 of
2019 (fiveJudge Bench) and was later detagged. On 16.09.2019,
a Coordinate 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
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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 file another additional affidavit indicating
the steps taken by the Government about
relaxation of some restrictions. He also made a
request to accommodate him for a week only.
During the course of hearing, we are informed
by the learned
Senior counsel appearing for the petitioners
that the orders which are issued by the
authorities relating to the restrictions imposed
have not been provided to them so far.
When we asked the learned Solicitor General
about the non supply of orders issued by the
authorities relating to the restrictions imposed,
particularly with respect to the cell phone
services as well as Section 144 proceedings, he
claims privilege over those orders. He, however,
states that those orders can be produced
before this Court.
However, if for any reason, learned Solicitor
General does not want to give a copy of those
orders to the petitioners, we request him to file
an affidavit indicating the reasons for claiming
such privilege.”
8
On 24.10.2019, after the aforesaid orders were placed on record
and pleadings were complete, the matter was listed for final
disposal on 05.11.2019. Taking into account the concerns
expressed by the parties, we extensively heard the counsel for
both sides, as well as all the Intervenors on 05.11.2019,
06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019,
26.11.2019 and 27.11.2019, and considered all the submissions
made and documents placed before us.
B. CONTENTIONS
Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No.
1031 of 2019
It was contended that the petitioner, being executive editor
of one of the major newspapers, was not able to function
post 05.08.2019, due to various restrictions imposed on the
press.
Print media came to a grinding halt due to nonavailability
of internet services, which in her view, is absolutely
essential for the modern press.
Curtailment of the internet, is a restriction on the right to
free speech, should be tested on the basis of reasonableness
and proportionality.
The procedure that is to be followed for restricting Internet
services is provided under the Temporary Suspension of
Telecom Services (Public Emergency or Public Service)
Rules, 2017 [hereinafter “Suspension Rules”], which were
notified under the Telegraph Act. The Suspension Rules
9
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
nonapplication 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 producing
documents and status reports during argumentation, was
improper, as it did not allow the Petitioners with sufficient
opportunity to rebut the same.
Learned senior counsel submitted that the Union of India
can declare an emergency only in certain limited situations.
Neither any ‘internal disturbance’ nor any ‘external
aggression’ has been shown in the present case for the
imposition of restrictions which are akin to the declaration
of Emergency.
With respect to the orders restricting movement passed
under Section 144, Cr.P.C., the learned senior counsel
contended that such an order is made to deal with a ‘law
10
and order’ situation, but the orders do not indicate any
existing law and order issue, or apprehension thereof.
Learned senior counsel pointed out that the order of the
Magistrate under Section 144, Cr.P.C. cannot be passed to
the public generally, and must be specifically against the
people or the group which is apprehended to disturb the
peace. It is necessary for the State to identify the persons
causing the problem, and an entire State cannot be brought
to a halt. Moreover, he has contended that there was no
application of mind before passing those orders.
While submitting that it could be assumed that there was
some material available for the purpose of passing the
orders under Section 144, Cr.P.C., the question which then
arises is how the State balances the rights of individuals.
The learned senior counsel, with respect to the
communications’ restrictions, submitted that the State had
not indicated as to the necessity to block landline services.
He further submitted that the communications/Internet
restrictions which were imposed under the Indian Telegraph
Act, 1885 [hereinafter “Telegraph Act”] needs to follow the
provisions of Section 5 of the Telegraph Act, in line with
Article 19 of the Constitution. While there can be some
restrictions, there can be no blanket orders, as it would
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.
11
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 facilitate business, etc.
Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No.
139141 of 2019 in W.P. (C) No. 1031 of 2019
The learned senior counsel emphasized on the term
“reasonable”, as used in Article 19(2) of the Constitution,
and submitted that the restrictions on the freedom of
speech should be reasonable as mandated under Article 19
of the Constitution. These restrictions need to be tested on
the anvil of the test of proportionality.
Learned senior counsel submitted that Section 144, Cr.P.C.
orders should be based on some objective material and not
merely on conjectures.
Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A.
No. 139555 in W.P. (C) No. 1031 of 2019
Learned senior counsel attempted to highlight that the issue
of balancing the measures necessary for ensuring national
security or curbing terrorism, with the rights of the citizens,
is an endeavour that is not unique, and has been
undertaken by Courts in various jurisdictions. Learned
senior counsel relied on the judgment of the Supreme Court
of Israel concerning the Legality of the General Security
Service's Interrogation Methods in Public Committee
Against Torture in Israel v. Israel, 38 I.L.M. 1471
(1999) relating to the question of whether torture during
interrogation of an alleged terrorist was permissible. In that
12
case, the Israeli Supreme Court held that such acts were
unconstitutional, and could not be justified in light of the
freedoms and liberties afforded to the citizens of Israel.
Learned senior counsel drew parallels between the situation
faced by the Israeli Supreme Court in the abovementioned
case, and that before this Court, wherein, according to the
learned senior counsel, the State is attempting to justify the
restrictions due to the circumstances prevailing in the State
of Jammu and Kashmir. The learned senior counsel
submitted that such a justification merits rejection as it
would amount to granting too much power to the 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 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
13
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’, (b)
legitimacy of purpose, (c) rational connection of the act and
object, (d) necessity of the action, and (e) when the above
four are established, then the test of proportionality.
At the outset, learned senior counsel submitted that it is
necessary to test the validity of the orders by reference to
the facts and circumstances prevailing on the date of
passing of the said orders, i.e., 04.08.2019.
Learned senior counsel submitted that the orders that have
not been published cannot be accorded the force of law. The
necessity of publication of law is a part of the rule of natural
justice. Not only must the orders be published, it is also
necessary that these orders be made available and
accessible to the public. The State cannot refuse to produce
the orders before the Court or claim any privilege.
The learned senior counsel further submitted that,
notwithstanding the expediency of the situation, the
necessity of a measure must be shown by the State. The
people have a right to speak their view, whether good, bad
or ugly, and the State must prove that it was necessary to
restrict the same.
On the point of proportionality, the learned senior counsel
submitted that the test of proportionality was upheld by this
Court in the case of K. S. Puttaswamy v. Union of India,
(2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy9J.)”) and therefore the proportionality of a measure must
be determined while looking at the restrictions being
imposed by the State on the fundamental rights of citizens.
The learned senior counsel pointed out that it is not just the
legal and physical restrictions that must be looked at, but
also the fear that these sorts of restrictions engender in the
minds of the populace, while looking at the proportionality
of measures.
Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.
(Crl.) No. 225 of 2019
14
Although this Writ Petition was withdrawn during
arguments, 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 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, Cr.P.C. 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 Mehta, Solicitor General for the State of Jammu
and Kashmir
15
The learned Solicitor General submitted that the first and
foremost duty of the State is to ensure security and protect
the citizens their lives, limbs and property. He further
submitted that the facts relied on by the Petitioners and the
Intervenors were incorrect, as they did not have the correct
information about the factual position on the ground in the
State of Jammu and Kashmir.
The learned Solicitor General submitted that the historical
background of the State of Jammu and Kashmir is
necessary to be looked at to understand the measures taken
by the State. The State has been a victim of both physical
and digital cross border terrorism.
The abrogation of Article 370 of the Constitution on
05.08.2019 was a historic step, which resulted not in the
taking away of the rights of the citizens of Jammu and
Kashmir, but conferment of rights upon them which they
never had. Now, with the abrogation, 106 people friendly
laws have become applicable to the State of Jammu and
Kashmir.
The learned Solicitor General submitted that the Petitioners
were incorrect to state that public movement was restricted.
In fact, individual movement had never been restricted.
Additionally, while schools were closed initially, they have
now been reopened. Depending on the facts, circumstances
and requirements of an area, restrictions were put in place
which are now being relaxed gradually.
On the orders passed by the Magistrates under Section 144,
Cr.P.C., in their respective jurisdictional areas, the learned
Solicitor General submitted that they were best placed to
know the situation on the ground, and then took their
respective decisions accordingly. Currently, there is nearly
hundred percent relaxation of restrictions. Restrictions were
being relaxed on the basis of the 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,
16
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, Cr.P.C. 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. SubDivisional 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
control, the troublemakers from the ordinary citizens.
The learned Solicitor General submitted that there were
enough facts in the knowledge of the Magistrate to pass the
orders under Section 144, Cr.P.C. There was sufficient
speculation on the ground to suggest that there might be a
move to abrogate Article 370 of the Constitution, and they
were aware of the situation on the ground. Provocative
speeches and messages were being transmitted. This
information is all available in the public domain.
It was further submitted that the Court does not sit in
appeal of the decision to impose restrictions under Section
144, Cr.P.C. and has limited jurisdiction to interfere,
particularly when there are no allegations of mala fide made
against the officers and when the question involved is of
national security. The level of restriction required is best left
to the officers who are on the ground with the requisite
information and knowledge, and the same is not to be
replaced by the opinion of the Courts.
17
With respect to the communications and internet shutdown,
the learned Solicitor General submitted that internet was
never restricted in the Jammu and Ladakh regions. Further,
he submitted that social media, which allowed people to
send messages and communicate with a number of people
at the same time, could be used as a means to incite
violence. The purpose of the limited and restricted use of
internet is to ensure that the situation on the ground would
not be aggravated by targeted messages from outside the
country. Further, the internet allows for the transmission of
false news or fake images, which are then used to spread
violence. The dark web allows individuals to purchase
weapons and illegal substances easily.
The learned Solicitor General submitted that the
jurisprudence on free speech relating to newspapers cannot
be applied to the internet, as both the media are different.
While newspapers only allowed oneway communication,
the internet makes twoway 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
indicated that the restrictions were necessary and in compliance
with the law. They have also submitted that normalcy is
18
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, Cr.P.C.
and other orders under the Suspension Rules?
II. Whether the freedom of speech and expression and
freedom to practise any profession, or to carry on any
occupation, trade or business over the Internet is a part of
the fundamental rights under Part III of the Constitution?
III. Whether the Government’s action of prohibiting internet
access is valid?
IV. Whether the imposition of restrictions under Section 144,
Cr.P.C. were valid?
V. Whether the freedom of press of the Petitioner in W.P. (C)
No. 1031 of 2019 was violated due to the restrictions?
D. PRODUCTION OF ORDERS
11. The present petitions, their context and conduct of the parties,
have placed this Court in a peculiar situation. We have been
19
asked to go into the question of the validity of orders, restricting
movement and communication, passed in the State of Jammu
and Kashmir by various authorities, however, the orders are not
before us. The Petitioners and Intervenors claim that the orders
were not available, which is why they could not place them on
record.
12. At the same time, while the nonavailability of orders was not
denied by the RespondentState, they did not produce the said
orders. In fact, when this Court by order dated 16.10.2019 asked
them to produce the orders, the RespondentState placed on
record only sample orders, citing difficulty in producing the
numerous orders which were being withdrawn and modified on a
daytoday basis. The RespondentState also claimed that the
plea to produce orders by the Petitioners was an expansion of the
scope of the present petitions.
13. At the outset, a perusal of the prayers in the Writ Petitions before
us should be sufficient to reject the aforementioned contention of
the RespondentState. In W.P. (C) No. 1164 of 2019 and I.A no.
157139 in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 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
20
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.”
(emphasis supplied)
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
21
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 natural law, that no
law should be passed in a clandestine manner. As Lon L. Fuller
suggests in his celebrated article “there can be no greater legal
monstrosity than a secret statute”.1
In this regard, Jeremy
Bentham spoke about open justice as the “keenest spur to
exertion”. In the same context, James Madison stated “a popular
government, without popular information, or the means of
acquiring it, is but a prologue to a farce or a tragedy; or perhaps
both. Knowledge will forever govern the ignorance and a people
1Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law
Review, 71(4), 630, 651 [February, 1958].
22
who mean to be their own Governors must arm themselves with
the power which knowledge gives”.
17. As a general principle, on a challenge being made regarding the
curtailment of fundamental rights as a result of any order passed
or action taken by the State which is not easily available, the
State should take a proactive approach in ensuring that all the
relevant orders are placed before the Court, unless there is some
specific ground of privilege or countervailing public interest to be
balanced, which must be specifically claimed by the State on
affidavit. In such cases, the Court could determine whether, in
the facts and circumstances, the privilege or public interest claim
of the State overrides the interests of the Petitioner. Such portion
of the order can be redacted or such material can be claimed as
privileged, if the State justifies such redaction on the grounds, as
allowed under the law.
18. In the present case, while the State initially claimed privilege, it
subsequently dropped the claim and produced certain sample
orders, citing difficulty in producing all the orders before this
Court. In our opinion, this is not a valid ground to refuse
production of orders before the Court.
23
E. FUNDAMENTAL RIGHTS UNDER PART III 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
24
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 socioeconomic 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 cyberspace has been phenomenal in the past decade,
wherein the limitation of storage space and accessibility of print
medium has been remedied by the usage of internet.
23. At this point it is important to note the argument of Mr. Vinton
G. Cerf, one of the ‘fathers of the internet’. He argued that while
the internet is very important, however, it cannot be elevated to
the status of a human right.2
Technology, in his view, is an
enabler of rights and not a right in and of itself. He distinguishes
2 Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04,
2012).
25
between placing technology among the exalted category of other
human rights, such as the freedom of conscience, equality etc.
With great respect to his opinion, the prevalence and extent of
internet proliferation cannot be undermined in one’s life.
24. Law and technology seldom mix like oil and water. There is a
consistent criticism that the development of technology is not met
by equivalent movement in the law. In this context, we need to
note that the law should imbibe the technological development
and accordingly mould its rules so as to cater to the needs of
society. Non recognition of technology within the sphere of law is
only a disservice to the inevitable. In this light, the importance of
internet cannot be underestimated, as from morning to night we
are encapsulated within the cyberspace and our most basic
activities are enabled by the use of internet.
25. We need to distinguish between the internet as a tool and the
freedom of expression through the internet. There is no dispute
that freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as
is possible. The wider range of circulation of information or its
greater impact cannot restrict the content of the right nor can it
26
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
27
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 and
technology have opened up vast business avenues and
transformed India as a global IT hub. There is no doubt that
there are certain trades which are completely dependent on the
internet. Such a right of trade through internet also fosters
consumerism and availability of choice. Therefore, the freedom of
trade and commerce through the medium of the internet is also
constitutionally protected under Article 19(1)(g), subject to the
restrictions provided under Article 19(6).
28
28. None of the counsels have argued for declaring the right to access
the internet as a fundamental right and therefore we are not
expressing any view on the same. We are confining ourselves to
declaring that the right to freedom of speech and expression
under Article 19(1)(a), and the right to carry on any trade or
business under 19(1)(g), using the medium of internet is
constitutionally protected.
29. Having explained the nature of fundamental rights and the utility
of internet under Article 19 of the Constitution, we need to
concern ourselves with respect to limitations provided under the
Constitution on these rights. With respect to the freedom of
speech and expression, restrictions are provided under Article
19(2) of the Constitution, which reads as under:
“(2) Nothing in sub clause (a) of clause (1) shall
affect the operation of any existing law, or
prevent the State from making any law, in so
far as such law imposes reasonable
restrictions on the exercise of the right
conferred by the said subclause in the
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.”
29
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
30
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 respect to Article 19(2) of the Constitution. (i)
Restriction on free speech and expression may include cases of
prohibition. (ii) There should not be excessive burden on free
speech even if a complete prohibition is imposed, and the
government has to justify imposition of such prohibition and
explain as to why lesser alternatives would be inadequate. (iii)
Whether a restriction amounts to a complete prohibition is a
question of fact, which is required to be determined by the Court
31
with regard to the facts and circumstances of each case. [refer to
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,
(2005) 8 SCC 534].
34. The second prong of the test, wherein this Court is required to
find whether the imposed restriction/prohibition was least
intrusive, brings us to the question of balancing and
proportionality. These concepts are not a new formulation under
the Constitution. In various parts of the Constitution, this Court
has taken a balancing approach to harmonize two competing
rights. In the case of Minerva Mills Ltd. v. Union of India,
(1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company
v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147, this Court
has already applied the balancing approach with respect to
fundamental rights and the directive principles of State Policy.
35. Before, we delve into the nuances of ‘restriction’ as occurring
under Article 19(2) of the Constitution, we need to observe
certain facts and circumstances in this case. There is no doubt
that Jammu and Kashmir has been a hot bed of terrorist
insurgencies for many years. In this light, we may note the
State’s submission that since 1990 to 2019 there have been
32
71,038 recorded incidents 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 farreaching
3 Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l
L. 789 (2007).
33
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 freedom
of speech was imposed due to the fact that there were national
security issues over and above a law and order situation, wherein
there were problems of infiltration and support from the other
side of the border to instigate violence and terrorism. The learned
Solicitor General pointed out that the ‘war on terrorism’ requires
imposition of such restriction so as to nip the problem of
terrorism in the bud. He submitted that in earlier times,
sovereignty and integrity of a State was challenged only on
occurrence of war. In some cases, there have been instances
4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing
with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005).
34
where the integrity of the State has been challenged by
secessionists. However, the traditional conceptions of warfare
have undergone an immense change and now it has been
replaced by a new term called ‘war on terror’. This war, unlike the
earlier ones, is not limited to territorial fights, rather, it
transgresses into other forms affecting normal life. The fight
against terror cannot be equated to a law and order situation as
well. In this light, we observe that this confusion of
characterising terrorism as a war stricto sensu or a normal law
and order situation has plagued the submission of the
respondent Government and we need to carefully consider such
submissions.
38. Before analysing the restrictions imposed on the freedom of
speech and expression in the Indian context, we need to have a
broad analysis of the state of affairs in the United States of
America (hereinafter ‘US’) where freedom of expression under the
First Amendment is treated to be very significant with the US
being perceived to be one of the liberal constituencies with
respect to free speech jurisprudence. However, we need to refer to
the context and state of law in the US, before we can understand
such an assertion.
35
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 fivemember 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 less disagreeable means of
securing least restrictive measures.
36
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
produces or is intended to produce a clear and
imminent danger that it will bring about
forthwith certain substantive evils that the
United States constitutionally may seek to
prevent. The power undoubtedly is greater
in time of war than in time of peace,
because war opens dangers that do not exist
at other times.”
(emphasis supplied)
41. The Second World War was also riddled with instances of tussle
between the First Amendment and national security issues. An
instance of the same was the conviction of William Dudley Pelley,
37
under the Espionage Act, 1917, which the Supreme Court of
United States refused to review.
42. During the Cold War, the attention of the American Congress was
on the increase of communism. In 1954, Congress even enacted
the Communist Control Act, which stripped the Communist party
of all rights, privileges and immunities. During this time, Dennis
v. United States, 341 US 494 (1951), is an important precedent.
Sections 2(a)(1), 2(a)(3) and 3 of the Alien Registration Act, 1940
made it unlawful for any person to knowingly or wilfully advocate
with the intent of the overthrowing or destroying the Government
of the United States by force or violence, to organize or help to
organize any group which does so, or to conspire to do so. The
Petitioner in the aforementioned case challenged the aforesaid
provision on the ground that these provisions violated the First
Amendment. The US Supreme Court held:
“An analysis of the leading cases in this Court
which have involved direct limitations on
speech, however, will demonstrate that both
the majority of the Court and the dissenters in
particular cases have recognized that this is
not an unlimited, unqualified right, but that
the societal value of speech must, on occasion,
be subordinated to other values and
considerations.”
38
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 overruled 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 peaceloving 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 dealing with war predictably leads
to sweeping incursions on fundamental
liberties.”
5 Senate Judiciary Committee Hearing on AntiTerrorism Policy, 106th Cong. (Dec. 6, 2001)
(testimony of Attorney General John Ashcroft)
6 Ackerman, Bruce, "The Emergency Constitution", Faculty Scholarship Series, 113 (2004).
39
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 integrity
of India. The question is one of extent rather than the existence
of the power to restrict.
47. The requirement of balancing various considerations brings us to
the principle of proportionality. In the case of K. S. Puttaswamy
(Privacy9J.) (supra), this Court observed:
“310…Proportionality is an essential facet of
the guarantee against arbitrary State action
because it ensures that the nature and quality
of the encroachment on the right is not
disproportionate to the purpose of the law...”
40
48. Further, in the case of CPIO v Subhash Chandra Aggarwal,
(2019) SCC OnLine SC 1459, the meaning of proportionality was
explained as:
“225…It is also crucial for the standard of
proportionality to be applied to ensure that
neither right is restricted to a greater extent
than necessary to fulfil the legitimate interest
of the countervailing interest in question…”
49. At the same time, we need to note that when it comes to
balancing national security with liberty, we need to be cautious.
In the words of Lucia Zedner7
:
“Typically, conflicting interests are said to be
‘balanced’ as if there were a selfevident
weighting of or priority among them. Yet rarely
are the particular interests spelt out, priorities
made explicitly, or the process by which a
weight is achieved made clear. Balancing is
presented as a zerosum game in which more
of one necessarily means less of the other …
Although beloved of constitutional lawyers and
political theorists, the experience of criminal
justice is that balancing is a politically
dangerous metaphor unless careful regard is
given to what is at stake.”
50. 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
7Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice,
(2005) 32 Journal of Law and Society 510.
41
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 ‘allornothing
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 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.
8Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights (1984)
153 (hereinafter Dworkin, “Rights as is trumps”).
42
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 which has greater
weight in this context.11 Therefore, he argues that nature of
principles implies the principle of proportionality.12
53. The doctrine of proportionality is not foreign to the Indian
Constitution, considering the use of the word ‘reasonable’ under
Article 19 of the Constitution. In a catena of judgments, this
Court has held “reasonable restrictions” are indispensable for the
realisation of freedoms enshrined under Article 19, as they are
what ensure that enjoyment of rights is not arbitrary or
excessive, so as to affect public interest. This Court, while sitting
9R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).
10Ibid at page 47.
11Ibid, page 50.
12Ibid, page 66.
43
in a Constitution Bench in one of its earliest judgments in
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC
118 interpreted limitations on personal liberty, and the balancing
thereof, as follows:
“7. The phrase “reasonable restriction”
connotes that the limitation imposed on a
person in enjoyment of the right should not
be arbitrary or of an excessive nature,
beyond what is required in the interests of
the public. The word “reasonable” implies
intelligent care and deliberation, that is, the
choice of a course which reason
dictates. Legislation which arbitrarily or
excessively invades the right cannot be said to
contain the quality of reasonableness and
unless it strikes a proper balance between the
freedom guaranteed in Article 19(1)(g) and the
social control permitted by clause (6) of Article
19, it must be held to be wanting in that
quality.”
(emphasis supplied)
This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,
while laying down the test of reasonableness, held that:
15. … It is 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
44
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….
(emphasis supplied)
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 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.”
(emphasis supplied)
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:
45
28. By “proportionality”, we mean the
question whether, while regulating exercise
of fundamental rights, the appropriate or
leastrestrictive 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 adverse effects which the
legislation or the administrative order may
have on the rights, liberties or interests of
persons keeping in mind the purpose which
they were intended to serve”. The legislature
and the administrative authority are, however,
given an area of discretion or a range of
choices but as to whether the choice made
infringes the rights excessively or not is for the
court. That is what is meant by
proportionality.
(emphasis supplied)
[See also State of Bihar v. Kamla Kant Misra, (1969) 3 SCC
337; Bishambhar Dayal Chandra Mohan v. State of Uttar
Pradesh, (1982) 1 SCC 39]
54. Recently, this Court in Modern Dental College & Research
Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held
that no constitutional right can be claimed to be absolute in a
realm where rights are interconnected to each other, and limiting
46
some rights in public interest might therefore be justified. The
Court held as follows:
“62. It is now almost accepted that there
are no absolute constitutional rights.
[Though, debate on this vexed issue still
continues and some constitutional experts
claim that there are certain rights, albeit very
few, which can still be treated as “absolute”.
Examples given are:(a) Right to human dignity
which is inviolable, (b) Right not to be
subjected to torture or to inhuman or
degrading treatment or punishment. Even in
respect of such rights, there is a thinking
that in larger public interest, the extent of
their protection can be diminished.
However, so far such attempts of the States
have been thwarted by the judiciary.] … 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...”
(emphasis supplied)
47
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
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 multifaceted
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 one hand and its limitation on the other
hand—is to be resolved by balancing the two
so that they harmoniously coexist with each
other. This balancing is to be done keeping
48
in mind the relative social values of each
competitive aspects when considered in
proper context.”
(emphasis supplied)
56. The next conundrum faced by the Court was in achieving the
requisite balance, the solution for which was derived from the
principle of proportionality. The eminent constitutional jurist, Kai
Möller states that the proportionality principle is the doctrinal
tool which guides Judges through the process of resolving these
conflicts.
13 One of the theories of proportionality widely relied
upon by most theorists is the version developed by the German
Federal Constitutional Court. The aforesaid doctrine lays down a
four pronged test wherein, first, it has to be analysed as to
whether the measure restricting the rights serves a legitimate
goal (also called as legitimate goal test), then it has to be
analysed whether the measure is a suitable means of furthering
this goal (the rational connection stage), next it has to be
assessed whether there existed an equally effective but lesser
restrictive alternative remedy (the necessity test) and at last, it
should be analysed if such a measure had a disproportionate
impact on the rightholder (balancing stage). One important
13Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford University Press,
2012).
49
feature of German test is the last stage of balancing, which
determines the outcome as most of the important issues are
pushed to the balancing stage and the same thereby dominates
the legal analysis. Under 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):
14Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation,
Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).
50
“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 Charter
right or freedom, and the objective which
has been identified as of “sufficient
importance”... The more severe the
deleterious effects of a measure, the more
important the objective must be if the measure
is to be reasonable and demonstrably justified
in a free and democratic society.”
(emphasis supplied)
58. As can be seen, there exists substantial difference in both
approaches, as the Oakes test, instead of requiring “any”
51
legitimate goal, demands the same to be compelling enough to
warrant the limitation of constitutional rights. Additionally, while
the German necessity test calls for a lesser restrictive measure
which is equivalently effective, the need for effectiveness has been
done away with in the Oakes test wherein the requirement of
least infringing measure has been stipulated.
59. It is also imperative for us to place reliance on Aharon Barak’s
seminal book15 on proportionality upon which Dr A.K. Sikri, J.
placed reliance while expounding the doctrine of proportionality
in Modern Dental College case (supra) as follows:
“60. … a limitation of a constitutional right will
be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such
a limitation are rationally connected to the
fulfilment of that purpose;
(iii) the measures undertaken are necessary in
that there are no alternative measures that
may similarly achieve that same purpose
with a lesser degree of limitation; and finally
(iv) 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.”
(emphasis supplied)
15Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge
University Press, 2012)
52
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 subclauses 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
53
restrictions are imposed or upon abstract
considerations (see Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731).”
(emphasis supplied)
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 direction, the next question that
arises is as to what criteria is to be adopted for
a proper balance between the two facets viz.
the rights and limitations imposed upon it by a
statute. Here comes the concept of
“proportionality”, which is a proper
criterion. To put it pithily, when a law
limits a constitutional right, such a
limitation is constitutional if it is
proportional. The law imposing restrictions
will be treated as proportional if it is meant to
achieve a proper purpose, and if the measures
taken to achieve such a purpose are rationally
connected to the purpose, and such measures
are necessary...
64. The exercise which, therefore, is to be
taken is to find out as to whether the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise
involves the weighing up of competitive values,
and ultimately an assessment based on
proportionality i.e. balancing of different
interests.”
(emphasis supplied)
54
62. While some scholars such as Robert Alexy16 call for a strong
interpretation of the necessity stage as it has direct impact upon
the realisation and optimisation of constitutional rights while
others such as David Bilchitz17 found significant problems with
this approach.
63. First, Bilchitz focuses on the issues arising out of both the
German test and the Oakes test, wherein the former treats all
policies to be necessary by justifying that the available
alternatives may not be equally effective, 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.
16Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002)
47.
17David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L.
Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).
55
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 various stages of the moderate interpretation of
necessity.”
18 He therefore recommends a fourstep inquiry which
is listed below:19
(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;
18 Ibid, page 61.
19Ibid, page 61.
56
(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 alternatives. A judgement must be made
whether the government measure is the best of
all feasible alternatives, considering both the
degree to which it realises the government
objective and the degree of impact upon
fundamental rights (‘the comparative
component’).
65. Admittedly, fundamental rights may not be absolute, however,
they require strong protection, thereby mandating a sensible
necessity test as the same will prevent the fundamental right
from becoming either absolute or to be diminished. Bilchitz,
describes the aforesaid test to be neither factual nor mechanical,
but rather normative and qualitative. He states that “[t]he key
purpose of the necessity enquiry is to offer an explicit
consideration of the relationship between means, objectives and
rights… Failure to conduct the necessity enquiry with diligence,
however, means that a government measure can escape close
57
scrutiny in relation to both the realisation of the objective and its
impact upon fundamental rights.”
20
66. Taking into consideration the aforesaid analysis, Dr. Sikri, J., in
K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1
(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the
test laid down in Modern Dental College Case (supra) which was
based on the German Test and modulated the same as against
the tests laid down by Bilchitz. Therein this Court held that:
“157. In Modern Dental College & Research
Centre [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353], four
subcomponents 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 rightholder
(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
20Ibid, 62
58
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 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.”
(emphasis supplied)
67. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar5J.)
(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 our
Constitution for violations of privacy to be
justified. This included the test of
proportionality: (SCC p. 509, para 325)
59
“325. … A law which encroaches
upon privacy will have to withstand
the touchstone of permissible
restrictions on fundamental rights.
In the context of Article 21 an
invasion of privacy must be justified
on the basis of a law which
stipulates a procedure which is fair,
just and reasonable. The law must
also be valid with reference to the
encroachment on life and personal
liberty under Article 21. An
invasion of life or personal liberty
must meet the threefold
requirement of (i) legality, which
postulates the existence of law;
(ii) need, defined in terms of a
legitimate State aim; and (iii)
proportionality which ensures a
rational nexus between the
objects and the means adopted to
achieve them.”
The third principle [(iii) above] adopts the test
of proportionality to ensure a rational
nexus between the objects and the means
adopted to achieve them. The essential role
of the test of proportionality is to enable the
court to determine whether a legislative
measure is disproportionate in its interference
with the fundamental right. In determining
this, the court will have regard to whether a
less intrusive measure could have been
adopted consistent with the object of the law
and whether the impact of the encroachment
on a fundamental 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
60
opinion, suggested a fourpronged 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.”
(emphasis supplied)
68. After applying the aforesaid doctrine in deciding the
constitutional validity of the Aadhaar scheme, Dr. Chandrachud,
J., in the K.S. Puttaswamy (Aadhaar5J.) 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 State aim;
1324.2. The justification for rightsinfringing
measures that interfere with or limit the
exercise of fundamental rights and
61
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
data must at all times vest in the
individual whose data is collected. The
individual must have a right of access to
the data collected and the discretion to
opt out.”
(emphasis supplied)
69. This is the current state of the doctrine of proportionality as it
exists in India, wherein proportionality is the key tool to achieve
62
judicial balance. But many scholars are not agreeable to
recognize proportionality equivalent to that of balancing.21
70. In view of the aforesaid discussion, we may summarize the
requirements of the doctrine of proportionality which must be
followed by the authorities before passing any order intending on
restricting fundamental rights of individuals. In the first stage
itself, the possible goal of such a measure intended at imposing
restrictions must be determined. It ought to be noted that such
goal must be legitimate. However, before settling on the aforesaid
measure, the authorities must assess the existence of any
alternative mechanism in furtherance of the aforesaid goal. The
appropriateness of such a measure depends on its implication
upon the fundamental rights and the necessity of such measure.
It is undeniable from the aforesaid holding that only the least
restrictive measure can be resorted to by the State, taking into
consideration the facts and circumstances. Lastly, since the
order has serious implications on the fundamental rights of the
21Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 C.L.J. 174
(hereinafter Rivers, “Proportionality”); Martin Luteran, Towards Proportionality as a
Proportion Between Means and Ends in Cian C. Murphy and Penny Green (eds.), Law and
Outsiders: Norms, Processes and “Othering” in the 21st Century (2011) (hereinafter Luteran,
“Towards Proportionality”); see also the contribution of Alison L. Young in Chapter 3 of this
volume.
63
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 Petitioners have relied
on a recent judgment of the High Court of Hong Kong, in Kwok
64
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 “antimask” 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 respondentState 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 accepted by
this Court.
76. However, there is ample merit in the contention of the
Government that the internet could be used to propagate
terrorism thereby challenging the sovereignty and integrity of
65
India. This Court would only observe that achievement of peace
and tranquillity within the erstwhile State of Jammu and
Kashmir requires a multifaceted approach without excessively
burdening the freedom of speech. In this regard the Government
is required to consider various options under Article 19(2) of the
Constitution, so that the brunt of exigencies is decimated in a
manner which burdens freedom of speech in a minimalist
manner.
77. Having discussed the general constitutional ambit of the
fundamental rights, proportionality and reasonable restrictions,
and a specific discussion on freedom of expression through the
internet and its restriction under Article 19(2), we now need to
analyse the application of the same in the present case.
F. INTERNET SHUTDOWN
78. Having observed the substantive law concerning the right to
internet and the restrictions that can be imposed on the same,
we need to turn our attention to the procedural aspect.
79. It must be noted that although substantive justice under the
fundamental rights analysis is important, procedural justice
cannot be sacrificed on the altar of substantive justice. There is a
66
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 (Privacy9J.) 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 Criminal Procedure Code, 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 Court, in the Shreya
Singhal case (supra), upheld the constitutional validity of this
67
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,
Cr.P.C., 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, Cr.P.C. 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 imposed by the
Magistrate under Section 144, Cr.P.C. While the Court did not
undertake a fullfledged discussion of the power of the Magistrate
to issue such restrictions under Section 144, Cr.P.C., the Court
observed as follows:
68
“9.…[U]nder Section 144 of the Code,
directions may be issued to certain persons
who may be the source for extending the
facility of internet access. Under the
circumstances, we do not find that the
contention raised on behalf of the petitioner
that the resort to only Section 69A was
available and exercise of power under Section
144 of the Code was unavailable, can be
accepted.”
(emphasis supplied)
A Special Leave Petition was filed against the above judgment of
the Gujarat High Court, being SLP (C) No. 601 of 2016, which
was dismissed by this Court in limine on 11.02.2016.
83. The position has changed since 2017, with the passage of the
Suspension Rules under Section 7 of the Telegraph Act. With the
promulgation of the Suspension Rules, the States are using the
aforesaid Rules to restrict telecom services including access to
the internet.
84. The Suspension Rules lay down certain safeguards, keeping in
mind the fact that an action under the same has a large effect on
the fundamental rights of citizens. 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
69
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 incharge 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
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 subrule (1) shall contain
70
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
subrule (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 in every
licensed service area or State or Union
territory, as the case may be, as the nodal
officers to receive and handle such requisitions
for suspension of telecom services.
(5) The Central Government or the State
Government, as the case may be, shall
constitute a Review Committee.
(i) The Review Committee to be constituted by
the Central Government shall consist of the
following, namely:
(a) Cabinet SecretaryChairman;
(b) Secretary to the Government of India
Incharge, Legal AffairsMember;
(c) Secretary to the Government,
Department of Telecommunications
Member.
(ii) The Review Committee to be constituted by
the State Government shall consist of the
following, namely:
71
(a)Chief SecretaryChairman;
(b)Secretary Law or Legal
Remembrancer InCharge, Legal
AffairsMember;
(c)Secretary to the State Government (other
than the Home Secretary) Member.
(6) The Review Committee shall meet within
five working days of issue of directions for
suspension of services due to public
emergency or public safety and record its
findings whether the directions issued under
subrule (1) are in accordance with the
provisions of subsection (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
subrule 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
72
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 twentyfour hours, failing which,
as per the second proviso, the order of suspension will cease to
exist. The confirmation of the order by the competent authority is
therefore essential, 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.
73
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 authority to the order passed by the authorised
officer, who must also take into account changed circumstances
if any, etc. After all, it is the competent authority who has been
given the power under the Suspension Rules to suspend telecom
services, with the authorised officer acting under the Suspension
Rules only due to some exigent circumstances.
88. The second requirement under Rule 2(2) is the forwarding of the
reasoned order of the competent authority to a Review Committee
which has been set up under the Suspension Rules, within one
working day. The composition of the Review Committee is
provided under Rule 2(5), with two distinct review committees
contemplated for the Union and the State, depending on the
competent authority which issued the order under Rule 2(1).
Rule 2(6) is the final internal check under the Suspension Rules
with respect to the orders issued thereunder. Rule 2(6) requires
the concerned Review Committee to meet within five working
74
days of issuance of the order suspending telecom services, and
record its findings about whether the order issued under the
Suspension Rules is in accordance with the provisions 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 or received by
any telegraph, shall not be transmitted, or
shall be intercepted or detained, or shall be
disclosed to the Government making the order
or an officer thereof mentioned in the order:
75
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
subsection.”
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 FourJudge 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 prerequisite for the
exercise of power under this section, must be a
“public emergency” and not any other kind of
emergency. The expression public emergency
has not been defined in the statute, but
contours broadly delineating its scope and
features are discernible from the section which
has to be read as a whole. In subsection (1)
the phrase ‘occurrence of any public
76
emergency’ is connected with and is
immediately followed by the phrase “or in
the interests of the public safety”. These
two phrases appear to take colour from
each other. In the first part of subsection
(2) those two phrases again occur in
association with each other, and the
context further clarifies with amplification
that a “public emergency” within the
contemplation of this section is one which
raises problems concerning the interest of
the public safety, the sovereignty and
integrity of India, the security of the State,
friendly relations with foreign States or
public order or the prevention of
incitement to the commission of an
offence. It is in the context of these matters
that the appropriate authority has to form an
opinion with regard to the occurrence of a
public emergency with a view to taking further
action under this section...”
(emphasis supplied)
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 phonetapping 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
77
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 mind the wordings of the section, and the above two
pronouncements of this Court, what emerges is that the prerequisite for an order to be passed under this subsection, 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 subsection pertaining to “sovereignty and integrity of India,
the security of the State, friendly relations with foreign states or
78
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 of public emergency which threatens
the life of the nation and the existence of which is officially
proclaimed...’. Comparable language has also been used in Article
15 of the European Convention on Human Rights which says "In
time of war or other public emergency threatening the life of the
nation". We may only point out that the ‘public emergency’ is
required to be of serious nature, and needs to be determined on a
case to case basis.
94. The second requirement of Section 5(2) of the Telegraph Act is for
the authority to be satisfied that it is necessary or expedient to
pass the orders in the interest of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign
79
states or public order or for preventing incitement to the
commission of an offence, and must record reasons thereupon.
The term ‘necessity’ and ‘expediency’ brings along the stages an
emergency is going to pass through usually. A public emergency
usually would involve different stages and the authorities are
required to have regards to the 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
80
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 publication or notification of the orders, a settled
principle of law, and of natural justice, is that an order,
particularly one 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
81
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 as follows:
“18. It is wellsettled that where a power is
required to be exercised by a certain
authority in a certain way, it should be
exercised in that manner or not at all, and
all other amodes ( sic) of performance are
necessarily forbidden. It is all the more
necessary to observe this rule where power is
of a drastic nature...”
(emphasis supplied)
This applies with even more force considering the large public
impact on the right to freedom of speech and expression that
such a broadbased restriction would have.
99. Lastly, we think it necessary to reiterate that complete broad
suspension of telecom services, be it the Internet or otherwise,
being a drastic measure, must be considered by the State only if
‘necessary’ and ‘unavoidable’. In furtherance of the same, the
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State must assess the existence of an alternate less intrusive
remedy. Having said so, we may note that the aforesaid
Suspension Rules have certain gaps, which are required to be
considered by the legislature.
100. One of the gaps which must be highlighted relates to the usage 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
83
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 restrictions contemplated under the Suspension Rules are
temporary in nature, the same must not be allowed to extend
beyond that time period which 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
84
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 services, that the same could not be done.
However, the State should have attempted to determine the
feasibility of such a measure. As all the orders have not been
placed before this Court and there is no clarity as to which orders
are in operation and which have already been withdrawn, as well
as the apprehension raised in relation to the possibility of public
order situations, we have accordingly moulded the relief in the
operative portion.
G. RESTRICTIONS UNDER SECTION 144 OF CRPC.
“As emergency does not shield the actions of Government
completely; disagreement does not justify destabilisation;
the beacon of rule of law shines always.”
103. The Petitioners have asserted that there were no disturbing facts
which warranted the imposition of restrictions under Section
144, Cr.P.C. on 04.08.2019. They strenuously argued that there
85
had to be a circumstance on 04.08.2019 showing that there
would be an action which will likely create obstruction,
annoyance or injury to any person or will likely 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,
Cr.P.C.
105. These contentions require us to examine the scope of Section
144, Cr.P.C, 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 Subdivisional Magistrate or any
other Executive Magistrate specially
empowered by the State Government in this
behalf, there is sufficient ground for proceeding
86
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 Section 134, direct any person to
abstain from a certain act or to take certain
order with respect to certain property in his
possession or under his management, if such
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:
87
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 the Magistrate would have, but for such
order, expired, as it may specify in the said
notification.
(5) Any Magistrate may, either on his own
motion or on the application of any person
aggrieved, rescind or alter any order made
under this section, by himself or any
Magistrate subordinate to him or by his
predecessorinoffice.
(6) The State Government may, either on its
own motion or on the application of any person
aggrieved, rescind or alter any order made by it
under the proviso to subsection (4).
(7) Where an application under subsection (5)
or subsection (6) is received, the Magistrate,
or the State Government, as the case may be,
shall afford to the applicant an early
opportunity of appearing before him or it, either
in person or by pleader and showing cause
88
against the order; and if the Magistrate or the
State Government, as the case may be, rejects
the application wholly or in part, he or it shall
record in writing the reasons for so doing.
106. Section 144, Cr.P.C. is one of the mechanisms that enable the
State to maintain public peace. It forms part of the Chapter in
the Criminal Procedure Code dealing with “Maintenance of Public
Order and Tranquillity” and is contained in the subchapter 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, Cr.P.C. 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.
89
108. The aforesaid safeguards in Section 144, Cr.P.C. are discussed
below and deserve close scrutiny.
(a) Prior Inquiry before issuing Order: Before issuing an order
under Section 144, Cr.P.C., the District Magistrate (or any
authorised Magistrate) must be of the opinion that:
i. There is a sufficient ground for proceeding under this
provision 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
90
weighed with the Magistrate to issue an order under Section
144, Cr.P.C.
(c) Communication of the Order: The Order must be served in
the manner provided under Section 134, Cr.P.C., i.e., served
on the person against whom it is made. If such a course of
action is not practicable, it must be notified by proclamation
and publication so as to convey the information to persons
affected by the order. Only in case of an emergency or where
the circumstances are such that notice cannot be served on
such a person, can the order be passed ex parte.
(d) Duration of the Order: As this power can only be exercised
in urgent cases, the statute has incorporated temporal
restrictions—the order cannot be in force for more than two
months. However, the State Government can extend an order
issued under Section 144, Cr.P.C. by a Magistrate for a
further period up to six months if the State Government
considers it necessary for preventing danger to human life,
health or safety or preventing a riot.
Although, a twomonth period outer limit for the Magistrate,
and a sixmonth limit for the State Government, has been
provided under Section 144, Cr.P.C. but the concerned
91
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, Cr.P.C. 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, Cr.P.C. has been the subject matter of several
Constitution Bench rulings and we will briefly examine them. The
constitutional validity of Section 144, Cr.P.C. 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).
92
Repelling the contention that it is an infringement of the
fundamental right of assembly, this Court upheld the provision
due to the various safeguards inbuilt under Section 144, Cr.P.C.
This Court opined that:
a. Section 144, Cr.P.C does not confer arbitrary power on
the Magistrate, since it must be preceded by an inquiry.
b. Although Section 144, Cr.P.C 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,
Cr.P.C 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, Cr.P.C 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 distinguish between
members of the public and the people engaging in
93
unlawful activity. However, any affected person can
always apply to the Magistrate under Section 144(4),
Cr.P.C. seeking exemption or modification of the order
to permit them to carry out any lawful activity.
f. If any person makes an application for modification or
alteration of the order, the Magistrate has to conduct a
judicial proceeding by giving a hearing, and give the
reasons for the decision arrived at.
g. The order of the Magistrate under Section 144, Cr.P.C is
subject to challenge before the High Court. The High
Court’s revisionary powers are wide enough to quash an
order which cannot be supported by the materials upon
which the order is supposed to be based.
h. If any prosecution is launched for noncompliance of an
order issued under Section 144, Cr.P.C., the validity of
such an order under Section 144, Cr.P.C. 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), Cr.P.C as it
then existed, which enabled the State Government to extend an
order passed under Section 144, Cr.P.C. indefinitely, as
unconstitutional, since it did not provide limitations on the
duration of the order and no mechanism was provided therein to
94
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 reconsider the law laid down in Babulal Parate
(supra) and the constitutional validity of Section 144, Cr.P.C.
This Court, while affirming the constitutional validity of Section
144, Cr.P.C. reiterated the safeguards while exercising the power
under Section 144, Cr.P.C. The Court highlighted that the power
under Section 144, Cr.P.C. must be:
(a)exercised in urgent situations to prevent harmful
occurrences. Since this power can be exercised
absolutely and even ex parte, “the emergency must be
sudden 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
95
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, Criminal Procedure Code 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 be abated and
prevented. …..In so far as the other parts of
the section are concerned the keynote 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 proportions to bring the
matter within interests of public order.”
(emphasis supplied)
112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC
226, this Court, in deciding a review petition, elaborated on the
circumstances in which the power under Section 144, Cr.P.C.
can be exercised. This Court held as under:
96
“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 Criminal
Procedure Code 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, Cr.P.C.”
(emphasis supplied)
113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71,
this Court held that an order passed under Section 144, Cr.P.C.
is an executive order which can be questioned in exercise of writ
jurisdiction under Article 226 of the Constitution. The Court
reiterated the circumstances in which the power can be
exercised. The Court observed as under:
“27. The entire basis of action under Section
144 is provided by the urgency of the
97
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 wrongdoer 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
administration to impose restrictions which
would affect only a minor section of the
community rather than prevent a larger
section more vociferous and militant.
33. ...It is only in an extremely
extraordinary situation, when other
measures are bound to fail, that a total
prohibition or suspension of their rights
may be resorted to as a last measure.”
98
(emphasis supplied)
114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of
Police, Calcutta, (1983) 4 SCC 522, a Bench of three Judges
expressed doubts about the dicta in the Gulam Abbas case
(supra) on the nature of the order under Section 144, Cr.P.C. but
reiterated that repetitive orders under Section 144, Cr.P.C. would
be an abuse of power. This Court observed as follows:
“16…. 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.”
(emphasis supplied)
115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court
emphasised the safeguards under Section 144, Cr.P.C. 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, Cr.P.C. as there existed no incumbent
99
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,
Cr.P.C. is a preventive power to preserve public order. In Babulal
Parate case (supra), this Court expressly clarified that this power
can be exercised even where there exists an apprehension of
danger. This Court observed as under:
“25. The language of Section 144 is somewhat
different. The test laid down in the section is
not merely “likelihood” or “tendency”. The
section says that the Magistrate must be
satisfied that immediate prevention of
particular acts is necessary to counteract
danger to public safety etc. The power
conferred by the section is exercisable not
only where present danger exists but is
exercisable also when there is an
apprehension of danger.”
(emphasis supplied)
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
100
from contesting or participating in elections. In this context, it is
sufficient to note that the power under Section 144, Cr.P.C.
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, Cr.P.C. 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, Cr.P.C. will only be applicable in a
situation of emergency and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed [refer to Babulal Parate case (supra)]. It is enough to
note that sufficient safeguards exist in Section 144, Cr.P.C.,
including the presence of judicial review challenging any abuse of
power under the Section, to allay the apprehensions of the
petitioner.
119. The Petitioners have also contended that ‘law and order’ is of a
narrower ambit than ‘public order’ and the invocation of ‘law and
order’ would justify a narrower set of restrictions under Section
144, Cr.P.C.
101
120. In this context, it is pertinent for us to emphasize the holding
rendered by a fiveJudge Bench of this court in Ram Manohar
Lohia v. State of Bihar, AIR 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.”
(emphasis supplied)
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 sevenJudge Bench in Madhu Limaye case
102
(supra) further elucidated as to when and against whom the
power under Section 144, Cr.P.C. can be exercised by the
Magistrate. This Court held therein, as under:
“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…. 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 keynote 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,
103
however, that annoyance must assume
sufficiently grave proportions to bring the
matter within interests of public order.”
(emphasis supplied)
122. This Court in Ramlila Maidan Incident, In re case (supra)
further enunciated upon the aforesaid distinction between a
“public order” and “law and order” situation:
“44. The distinction between “public order”
and “law and order” is a fine one, but
nevertheless clear. A restriction imposed
with “law and order” in mind would be least
intruding into the guaranteed freedom
while “public order” may qualify for a
greater degree of restriction since public
order is a matter of even greater social
concern.
…
45. It is keeping this distinction in mind, the
legislature, under Section 144 CrPC, has
empowered the District Magistrate, SubDivisional 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 144A CrPC, which itself was
introduced by Act 25 of 2005 [Ed.: The
Code of Criminal Procedure (Amendment)
Act, 2005.] , the District Magistrate has
104
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. …”
(emphasis supplied)
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 situation where two communities fight over the
same, the situation might transcend into a public order situation.
However, it has to be noted that a similar approach cannot be
taken to remedy the aforesaid two distinct situations. The
Magistrate cannot apply a straitjacket formula without assessing
the gravity of the prevailing circumstances; the restrictions must
be proportionate to the situation concerned.
124. Learned senior counsel, Mr. Kapil Sibal also contended that an
order under Section 144, Cr.P.C. cannot be issued against the
105
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.”
(emphasis supplied)
125. The counsel on behalf of the Petitioners have argued that the
validity of the aforesaid restrictions has to be tested on its
reasonableness. The restrictions imposed must be proportionate
to the proposed/perceived threat. In the context of restrictions
106
imposed by way of orders passed under Section 144, Cr.P.C., this
Court, in Ramlila Maidan Incident case (supra), held that an
onerous duty is cast upon the concerned Magistrate to first
assess the perceived threat and impose the least invasive
restriction possible. The concerned Magistrate is duty bound to
ensure that the restrictions should never be allowed to be
excessive either in nature or in time. The relevant portion is
extracted below:
“39. There has to be a balance and
proportionality between the right and
restriction on the one hand, and the 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
107
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.”
(emphasis supplied)
126. As discussed above, the decisions of this Court in the Modern
Dental College case (supra) and K.S. Puttaswamy (Aadhaar5J.) case (supra), which brought the concept of proportionality
into the fold, equally apply to an order passed under Section 144,
Cr.P.C.
127. The Petitioners also contended that orders passed under Section
144, Cr.P.C., imposing restrictions, cannot be a subject matter of
privilege. Moreover, material facts must be recorded in the order
itself. On the other hand, the learned Solicitor General argued
that the empowered officers were in the best position to know the
situation on the ground and accordingly the aforesaid orders
were passed. There existed sufficient speculation 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
108
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
CrPC 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 CrPC, such an order is
revisable and is subject to judicial review.
Therefore, it will be appropriate that it
must be an order in writing, referring to the
facts and stating the reasons for imposition
of such restriction. In Praveen Bhai Thogadia
[(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this
Court took the view that the Court, while
dealing with such orders, does not act like an
appellate authority over the decision of the
official concerned. It would interfere only
where the order is patently illegal and
without jurisdiction or with ulterior motive
and on extraneous consideration of political
victimisation by those in power. Normally,
109
interference should be the exception and
not the rule.”
(emphasis supplied)
129. We may note that orders passed under Section 144, Cr.P.C. 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 unnotified.
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. Subsection (1) confers powers not on the
executive but on certain Magistrates…Under
subsection (1) the Magistrate himself has
to form an opinion that there is sufficient
ground for proceeding under this section
110
and immediate prevention or speedy
remedy is desirable. Again the subsection
requires the Magistrate to make an order in
writing and state therein the material facts
by reason of which he is making the order
thereunder. The subsection further
enumerates the particular activities with
regard to which the Magistrate is entitled to
place restraints.”
(emphasis supplied)
130. While passing orders under Section 144, Cr.P.C., it is imperative
to indicate the material facts necessitating passing of such
orders. Normally, it should be invoked and confined to a
particular area or some particular issues. However, in the
present case, it is contended by the Petitioners that the majority
of the geographical area of the erstwhile State of Jammu and
Kashmir was placed under orders passed under Section 144,
Cr.P.C. 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.
111
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, Cr.P.C., 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 to assess and to handle the situation
depending upon the peculiar needs and
necessities within their special knowledge. ……
Therefore, whenever the authorities
concerned in charge of law and order find
that a person’s speeches or actions are
likely to trigger communal antagonism and
hatred resulting in fissiparous tendencies
gaining foothold, undermining and affecting
communal harmony, prohibitory orders
need necessarily to be passed, to effectively
avert such untoward happenings.
7... If they feel that the presence or
participation of any person in the meeting or
congregation would be objectionable, for some
patent or latent reasons as 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
112
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 those in power, and
interference as a matter of course and as
though adjudicating an appeal, will defeat the
very purpose of legislation and legislative
intent…”
(emphasis supplied)
132. It is true that we do not sit in appeal, however, the existence of
the power of judicial review is undeniable. We are of the opinion
that it is for the Magistrate and the State to make an informed
judgement about the likely threat to public peace and law and
113
order. The State is best placed to make an assessment of threat
to public peace and tranquillity or law and order. However, 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, Cr.P.C. 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, Cr.P.C. should be indicative
of proper application of mind, which should be based on the
114
material facts and the remedy directed. Proper reasoning links
the application of mind of the officer concerned, to the
controversy involved and the conclusion reached. Orders passed
mechanically or in a cryptic manner cannot be said to be orders
passed in accordance with law.
135. During the course of hearing, on 26.11.2019, the learned
Solicitor General sought the permission of this Court to produce
certain confidential documents to be perused by this Court.
However, he objected to revealing certain documents to the
Petitioners, claiming sensitivity and confidentiality. Learned
senior counsel Mr. Kapil Sibal stated that the Court could
assume the existence of such intelligence inputs and materials.
In view of 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
115
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), Cr.P.C. 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 the
State cross border terrorism, infiltration of militants, security
issues, etc., cannot be forgotten and must be kept in mind while
testing the legality of the orders. Further, the Respondent
submitted that the orders were passed in the aforementioned
context and in the anticipated threat to law and order, to prevent
any loss of life, limb and property. However, these orders do not
explain the aforesaid aspects.
138. Although the restrictions have been allegedly removed on
27.09.2019, thereby rendering the present exercise into a
116
virtually academic one, we cannot ignore noncompliance 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
needbased orders. In view of the same, appropriate directions
are provided in the operative part of this judgment.
140. Before parting we summarise the legal position on Section 144,
Cr.P.C as follows:
117
i. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there
exists present danger, but also when there is an
apprehension of danger. However, the danger
contemplated should be in the nature of an “emergency”
and for the purpose of preventing obstruction and
annoyance or injury to any person lawfully employed.
ii. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
iii. An order passed under Section 144, Cr.P.C. 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, Cr.P.C.
the Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter apply the least intrusive measure.
118
v. Repetitive orders under Section 144, Cr.P.C. 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 10082019 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. The English
newspaper, Kashmir Times, was founded in
1954 as a news weekly. It was later converted
to a daily newspaper in 1962 and has regularly
been in print and circulation ever since.
Kashmir Times is a widely read English
newspaper in Jammu and Kashmir, and also
has significant readership in the neighbouring
States of Punjab, Delhi and Himachal Pradesh.
14. On 04082019, sometime during the day,
mobile phone networks, internet services, and
landline phones were all discontinued in the
Kashmir valley and in some districts of Jammu
and Ladakh. No formal orders under which
such action was 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
119
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 05082019, 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 0508
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 0508
2019, the Jammu and Kashmir Reorganisation
Bill, 2019, was introduced in the Rajya Sabha,
and passed. On 06082019, the said Bill was
passed by the Lok Sabha. The President’s
assent was given to the Bill on 09082019.
The Gazette Notification, dt. 09082019 states
that the Jammu and Kashmir Reorganisation
Act, 2019, will come into effect from 31st
October, 2019, and that there shall be a new
Union Territory of Jammu and Kashmir. All of
this was carried out while the State of Jammu
and Kashmir was in a lockdown and silenced
through a communication shutdown.
16. In such Circumstances the Kashmir Times’
Srinagar edition could not be distributed on
05082019 and it could not be published
thereafter from 06082019 to 11102019, as
newspaper publication necessarily requires
news gathering by reporters traveling across
the Valley and unhindered interaction with
public and officials. Due to the indiscriminate
lockdownincluding communication and
internet blackout and severe curbs on
120
movement enforced by the respondents, the
Petitioner was prevented and hindered from
carrying out her profession and work. Even
after 11102019 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 of his assertions, his
criticisms or his comments is as wide as, and
no wider than that of any other subject.”
143. During the drafting of our Constitution, B. N. Rau, while
commenting on the amendments by Jaya Prakash Narayan, who
had proposed a separate freedom of press, had commented in the
following manner:
121
“It is hardly necessary to provide specifically
for the freedom of the press as freedom of
expression provided in subclause (a) of clause
(1) of article 13 will include freedom of the
press...”
144. Thereafter, many judgments of this Court including Bennett
Coleman v. Union of India, (1972) 2 SCC 788, Indian Express
(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, Cr.P.C. and
restriction on internet and communication, has indirectly
affected the freedom of the press in the valley.
122
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. Squarely however, the contention of the
Petitioner rests on the chilling effects alleged to be produced by
the imposition of restrictions as discussed above.
147. Chilling effect has been utilized in Indian Jurisprudence as a
fairly recent concept. Its presence in the United States of America
can be traced to the decision in Weiman v. Updgraff, 344 U.S.
183. We may note that the argument of chilling effect has been
utilized in various contexts, from being purely an emotive
argument to a substantive component under the free speech
adjudication. The 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 “selfproclaiming
instrument”.
123
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.22 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 (Privacy9J.) (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
rights cannot be viewed as silos, rather they should be viewed in
a cumulative manner which may be affected in different ways.
The technical rule of causal link cannot be made applicable in
the case of human rights. Human rights are an inherent feature
of every human and there is no question of the State not
22 Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect
(1978).
124
providing for these rights. In one sense, the restrictions provided
under Article 19(2) of the Constitution follow a utilitarian
approach wherein individualism gives way for commonality of
benefit, if such restrictions are required and demanded by law. In
this context, the test of ‘direct impact’ as laid down in A.K
Gopalan v. State of Madras, 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
125
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 the aforesaid restrictions were
unconstitutional because it has a chilling effect on the freedom of
press generally is to say virtually nothing at all or is saying
something that is purely speculative, unless evidence is brought
before the Court to enable it to give a clear finding, which has not
been placed on record in the present case. [refer to Clapper v
Amnesty Int’l, USA, 568 U.S. 113 (2013)]
151. In this context, one possible test of chilling effect is comparative
harm. In this framework, the Court is required to see whether
the impugned restrictions, due to their broadbased 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 06082019 to 11102019.
However, no evidence was put forth to establish that such other
individuals were also restricted in publishing newspapers in the
126
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 selfserving 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 the following directions:
a. The Respondent State/competent authorities are directed to
publish all orders in force and any future orders under
Section 144, Cr.P.C and for suspension of telecom services,
including internet, to enable the affected persons to
challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and
the freedom to practice any profession or carry on any
trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamental
127
rights should be in consonance with the mandate 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 the law laid down above,
must be revoked. Further, in future, if there is a necessity to
pass fresh orders, the law laid down herein must be
followed.
i. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites,
localized/limited ebanking facilities, hospitals services and
128
other essential services, in those regions, wherein the
internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of
danger. However, the danger contemplated should be in the
nature of an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed.
k. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. 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.
m.While exercising the power under Section 144, Cr.P.C., the
Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
o. The Respondent State/competent authorities are directed to
review forthwith the need for continuance of any existing
orders passed under Section 144, Cr.P.C in accordance with
law laid down above.
129
153. The Writ Petitions are disposed of in the aforestated terms. All
pending applications are also accordingly disposed of.
..............................................J.
(N.V. RAMANA)
..............................................J.
(R. SUBHASH REDDY)
..............................................J.
(B. R. GAVAI)
NEW DELHI;
JANUARY 10, 2020
130
“Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this context, this Court’s job is compounded by the magnitude of the task before it. It goes without saying that this Court will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.
Liberty and security have always been at loggerheads.
comparative harm. In this framework, the Court is required to see whether
the impugned restrictions, due to their broadbased 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 06082019 to 11102019.
However, no evidence was put forth to establish that such other
individuals were also restricted in publishing newspapers in the
126
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 selfserving 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 the following directions:
a. The Respondent State/competent authorities are directed to
publish all orders in force and any future orders under
Section 144, Cr.P.C and for suspension of telecom services,
including internet, to enable the affected persons to
challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and
the freedom to practice any profession or carry on any
trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamental
127
rights should be in consonance with the mandate 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 the law laid down above,
must be revoked. Further, in future, if there is a necessity to
pass fresh orders, the law laid down herein must be
followed.
i. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites,
localized/limited ebanking facilities, hospitals services and
128
other essential services, in those regions, wherein the
internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of
danger. However, the danger contemplated should be in the
nature of an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed.
k. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. 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.
m.While exercising the power under Section 144, Cr.P.C., the
Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
o. The Respondent State/competent authorities are directed to
review forthwith the need for continuance of any existing
orders passed under Section 144, Cr.P.C in accordance with
law laid down above.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1031 OF 2019
ANURADHA BHASIN …PETITIONER
VERSUS
UNION OF INDIA AND ORS. …RESPONDENT(S)
And
WRIT PETITION (CIVIL) NO. 1164 OF 2019
GHULAM NABI AZAD …PETITIONER
VERSUS
UNION OF INDIA AND ANR. …RESPONDENT(S)
JUDGMEN T
TABLE OF CONTENTS
Introduction A
Contentions B
Issues C
Production of Orders D
Fundamental Rights under Part III and restrictions
thereof
E
Internet Shutdown F
Restrictions under Section 144, Cr.P.C. G
1
REPORTABLE
Freedom of the Press H
Conclusion I
N. V. RAMANA, J.
A. INTRODUCTION
“It was the best of times, it was the worst
of times,
it was the age of wisdom, it was the age of
foolishness,
it was the epoch of belief, it was the epoch
of incredulity,
it was the season of Light, it was the
season of Darkness,
it was the spring of hope, it was the winter
of despair,
we had everything before us, we had
nothing before us,
we were all going direct to Heaven, we
were all going direct the other way
in short, the period was so far like the
present period, that some of its noisiest
authorities insisted on its being received,
for good or for evil, in the superlative
degree of comparison only.”
Charles Dickens in A Tale of Two Cities
2
1. Although cherished in our heart as a “Paradise on Earth”, the
history of this beautiful land is etched with violence and
militancy. While the mountains of Himalayas spell tranquillity,
yet blood is shed every day. In this land of inherent
contradictions, these petitions add to the list, wherein two sides
have shown two different pictures which are diametrically
opposite and factually irreconcilable. In this context, this Court’s
job is compounded by the magnitude of the task before it. It goes
without saying that this Court will not delve into the political
propriety of the decision taken herein, which is best left for
democratic forces to act on. Our limited scope is to strike a
balance between the liberty and security concerns so that the
right to life is secured and enjoyed in the best possible manner.
2. Liberty and security have always been at loggerheads. The
question before us, simply put, is what do we need more, liberty
or security? Although the choice is seemingly challenging, we
need to clear ourselves from the platitude of rhetoric and provide
a meaningful answer so that every citizen has adequate security
and sufficient liberty. The pendulum of preference should not
swing in either extreme direction so that one preference
3
compromises the other. It is not our forte to answer whether it is
better to be free than secure or be secure rather than free.
However, we are here only to ensure that citizens are provided all
the rights and liberty to the highest extent in a given situation
while ensuring security at the same time.
3. The genesis of the issue starts with the Security Advisory issued
by the Civil Secretariat, Home Department, Government of
Jammu and Kashmir, advising the tourists and the Amarnath
Yatris to curtail their stay and make arrangements for their
return in the interest of safety and security. Subsequently,
educational institutions and offices were ordered to remain shut
until further orders. On 04.08.2019, mobile phone networks,
internet services, landline connectivity were all discontinued in
the valley, with restrictions on movement also being imposed in
some areas.
4. On 05.08.2019, Constitutional Order 272 was issued by the
President, applying all provisions of the Constitution of India to
the State of Jammu and Kashmir, and modifying Article 367
(Interpretation) in its application to the State of Jammu and
Kashmir. In light of the prevailing circumstances, on the same
day, the District Magistrates, apprehending breach of peace and
4
tranquillity, imposed restrictions on movement and public
gatherings by virtue of powers vested under Section 144, Cr.P.C.
Due to the aforesaid restrictions, the Petitioner in W.P. (C) No.
1031 of 2019 claims that the movement of journalists was
severely restricted and on 05.08.2019, the Kashmir Times
Srinagar Edition could not be distributed. The Petitioner has
submitted that since 06.08.2019, she has 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 communication including internet,
mobile and fixed line telecommunication services have been shut
down or suspended or in any way made inaccessible or
unavailable in any locality. Further, the Petitioners sought the
issuance of an appropriate writ or direction directing
Respondents to immediately restore all modes of communication
including mobile, internet and landline services throughout
5
Jammu and Kashmir in order to provide an enabling
environment for the media to practice its profession. Moreover,
the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to pass
any appropriate writ or direction directing the Respondents to
take necessary steps for ensuring free and safe movement of
reporters and journalists and other media personnel. Lastly, she
also pleaded for the framing of guidelines ensuring that the rights
and means of media personnel to report and publish news is not
unreasonably curtailed.
6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164
of 2019), alleges that he was stopped from travelling to his
constituency in Jammu and Kashmir. In this context, he alleges
that due to the aforesaid restrictions, he is not able to
communicate with the people of his constituency.
7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad), was
listed before a Coordinate Bench of this Court on 16.09.2019,
the following order was passed:
“Issue notice.
We permit the petitioner to go to Srinagar and
visit the following districts, subject to
restrictions, if any:
(i) Srinagar, (ii) Anantnag, (iii) Baramulla and
(iv) Jammu.
6
The petitioner has undertaken before the Court
on his own volition that he will not indulge in
any political rally or political activity during his
visit. The visit will solely be concerned with
making an assessment of the impact of the
present situation on the life of the daily wage
earners, if any.
So far as prayers (2) and (3) of the writ petition
are concerned, the State as well as, the Union
of India will respond within two weeks hence.”
8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019, the
matter was ordered to be tagged along with W.P. (C) No. 1013 of
2019 (fiveJudge Bench) and was later detagged. On 16.09.2019,
a Coordinate 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
7
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 file another additional affidavit indicating
the steps taken by the Government about
relaxation of some restrictions. He also made a
request to accommodate him for a week only.
During the course of hearing, we are informed
by the learned
Senior counsel appearing for the petitioners
that the orders which are issued by the
authorities relating to the restrictions imposed
have not been provided to them so far.
When we asked the learned Solicitor General
about the non supply of orders issued by the
authorities relating to the restrictions imposed,
particularly with respect to the cell phone
services as well as Section 144 proceedings, he
claims privilege over those orders. He, however,
states that those orders can be produced
before this Court.
However, if for any reason, learned Solicitor
General does not want to give a copy of those
orders to the petitioners, we request him to file
an affidavit indicating the reasons for claiming
such privilege.”
8
On 24.10.2019, after the aforesaid orders were placed on record
and pleadings were complete, the matter was listed for final
disposal on 05.11.2019. Taking into account the concerns
expressed by the parties, we extensively heard the counsel for
both sides, as well as all the Intervenors on 05.11.2019,
06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019,
26.11.2019 and 27.11.2019, and considered all the submissions
made and documents placed before us.
B. CONTENTIONS
Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No.
1031 of 2019
It was contended that the petitioner, being executive editor
of one of the major newspapers, was not able to function
post 05.08.2019, due to various restrictions imposed on the
press.
Print media came to a grinding halt due to nonavailability
of internet services, which in her view, is absolutely
essential for the modern press.
Curtailment of the internet, is a restriction on the right to
free speech, should be tested on the basis of reasonableness
and proportionality.
The procedure that is to be followed for restricting Internet
services is provided under the Temporary Suspension of
Telecom Services (Public Emergency or Public Service)
Rules, 2017 [hereinafter “Suspension Rules”], which were
notified under the Telegraph Act. The Suspension Rules
9
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
nonapplication 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 producing
documents and status reports during argumentation, was
improper, as it did not allow the Petitioners with sufficient
opportunity to rebut the same.
Learned senior counsel submitted that the Union of India
can declare an emergency only in certain limited situations.
Neither any ‘internal disturbance’ nor any ‘external
aggression’ has been shown in the present case for the
imposition of restrictions which are akin to the declaration
of Emergency.
With respect to the orders restricting movement passed
under Section 144, Cr.P.C., the learned senior counsel
contended that such an order is made to deal with a ‘law
10
and order’ situation, but the orders do not indicate any
existing law and order issue, or apprehension thereof.
Learned senior counsel pointed out that the order of the
Magistrate under Section 144, Cr.P.C. cannot be passed to
the public generally, and must be specifically against the
people or the group which is apprehended to disturb the
peace. It is necessary for the State to identify the persons
causing the problem, and an entire State cannot be brought
to a halt. Moreover, he has contended that there was no
application of mind before passing those orders.
While submitting that it could be assumed that there was
some material available for the purpose of passing the
orders under Section 144, Cr.P.C., the question which then
arises is how the State balances the rights of individuals.
The learned senior counsel, with respect to the
communications’ restrictions, submitted that the State had
not indicated as to the necessity to block landline services.
He further submitted that the communications/Internet
restrictions which were imposed under the Indian Telegraph
Act, 1885 [hereinafter “Telegraph Act”] needs to follow the
provisions of Section 5 of the Telegraph Act, in line with
Article 19 of the Constitution. While there can be some
restrictions, there can be no blanket orders, as it would
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.
11
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 facilitate business, etc.
Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No.
139141 of 2019 in W.P. (C) No. 1031 of 2019
The learned senior counsel emphasized on the term
“reasonable”, as used in Article 19(2) of the Constitution,
and submitted that the restrictions on the freedom of
speech should be reasonable as mandated under Article 19
of the Constitution. These restrictions need to be tested on
the anvil of the test of proportionality.
Learned senior counsel submitted that Section 144, Cr.P.C.
orders should be based on some objective material and not
merely on conjectures.
Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A.
No. 139555 in W.P. (C) No. 1031 of 2019
Learned senior counsel attempted to highlight that the issue
of balancing the measures necessary for ensuring national
security or curbing terrorism, with the rights of the citizens,
is an endeavour that is not unique, and has been
undertaken by Courts in various jurisdictions. Learned
senior counsel relied on the judgment of the Supreme Court
of Israel concerning the Legality of the General Security
Service's Interrogation Methods in Public Committee
Against Torture in Israel v. Israel, 38 I.L.M. 1471
(1999) relating to the question of whether torture during
interrogation of an alleged terrorist was permissible. In that
12
case, the Israeli Supreme Court held that such acts were
unconstitutional, and could not be justified in light of the
freedoms and liberties afforded to the citizens of Israel.
Learned senior counsel drew parallels between the situation
faced by the Israeli Supreme Court in the abovementioned
case, and that before this Court, wherein, according to the
learned senior counsel, the State is attempting to justify the
restrictions due to the circumstances prevailing in the State
of Jammu and Kashmir. The learned senior counsel
submitted that such a justification merits rejection as it
would amount to granting too much power to the 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 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
13
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’, (b)
legitimacy of purpose, (c) rational connection of the act and
object, (d) necessity of the action, and (e) when the above
four are established, then the test of proportionality.
At the outset, learned senior counsel submitted that it is
necessary to test the validity of the orders by reference to
the facts and circumstances prevailing on the date of
passing of the said orders, i.e., 04.08.2019.
Learned senior counsel submitted that the orders that have
not been published cannot be accorded the force of law. The
necessity of publication of law is a part of the rule of natural
justice. Not only must the orders be published, it is also
necessary that these orders be made available and
accessible to the public. The State cannot refuse to produce
the orders before the Court or claim any privilege.
The learned senior counsel further submitted that,
notwithstanding the expediency of the situation, the
necessity of a measure must be shown by the State. The
people have a right to speak their view, whether good, bad
or ugly, and the State must prove that it was necessary to
restrict the same.
On the point of proportionality, the learned senior counsel
submitted that the test of proportionality was upheld by this
Court in the case of K. S. Puttaswamy v. Union of India,
(2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy9J.)”) and therefore the proportionality of a measure must
be determined while looking at the restrictions being
imposed by the State on the fundamental rights of citizens.
The learned senior counsel pointed out that it is not just the
legal and physical restrictions that must be looked at, but
also the fear that these sorts of restrictions engender in the
minds of the populace, while looking at the proportionality
of measures.
Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.
(Crl.) No. 225 of 2019
14
Although this Writ Petition was withdrawn during
arguments, 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 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, Cr.P.C. 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 Mehta, Solicitor General for the State of Jammu
and Kashmir
15
The learned Solicitor General submitted that the first and
foremost duty of the State is to ensure security and protect
the citizens their lives, limbs and property. He further
submitted that the facts relied on by the Petitioners and the
Intervenors were incorrect, as they did not have the correct
information about the factual position on the ground in the
State of Jammu and Kashmir.
The learned Solicitor General submitted that the historical
background of the State of Jammu and Kashmir is
necessary to be looked at to understand the measures taken
by the State. The State has been a victim of both physical
and digital cross border terrorism.
The abrogation of Article 370 of the Constitution on
05.08.2019 was a historic step, which resulted not in the
taking away of the rights of the citizens of Jammu and
Kashmir, but conferment of rights upon them which they
never had. Now, with the abrogation, 106 people friendly
laws have become applicable to the State of Jammu and
Kashmir.
The learned Solicitor General submitted that the Petitioners
were incorrect to state that public movement was restricted.
In fact, individual movement had never been restricted.
Additionally, while schools were closed initially, they have
now been reopened. Depending on the facts, circumstances
and requirements of an area, restrictions were put in place
which are now being relaxed gradually.
On the orders passed by the Magistrates under Section 144,
Cr.P.C., in their respective jurisdictional areas, the learned
Solicitor General submitted that they were best placed to
know the situation on the ground, and then took their
respective decisions accordingly. Currently, there is nearly
hundred percent relaxation of restrictions. Restrictions were
being relaxed on the basis of the 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,
16
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, Cr.P.C. 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. SubDivisional 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
control, the troublemakers from the ordinary citizens.
The learned Solicitor General submitted that there were
enough facts in the knowledge of the Magistrate to pass the
orders under Section 144, Cr.P.C. There was sufficient
speculation on the ground to suggest that there might be a
move to abrogate Article 370 of the Constitution, and they
were aware of the situation on the ground. Provocative
speeches and messages were being transmitted. This
information is all available in the public domain.
It was further submitted that the Court does not sit in
appeal of the decision to impose restrictions under Section
144, Cr.P.C. and has limited jurisdiction to interfere,
particularly when there are no allegations of mala fide made
against the officers and when the question involved is of
national security. The level of restriction required is best left
to the officers who are on the ground with the requisite
information and knowledge, and the same is not to be
replaced by the opinion of the Courts.
17
With respect to the communications and internet shutdown,
the learned Solicitor General submitted that internet was
never restricted in the Jammu and Ladakh regions. Further,
he submitted that social media, which allowed people to
send messages and communicate with a number of people
at the same time, could be used as a means to incite
violence. The purpose of the limited and restricted use of
internet is to ensure that the situation on the ground would
not be aggravated by targeted messages from outside the
country. Further, the internet allows for the transmission of
false news or fake images, which are then used to spread
violence. The dark web allows individuals to purchase
weapons and illegal substances easily.
The learned Solicitor General submitted that the
jurisprudence on free speech relating to newspapers cannot
be applied to the internet, as both the media are different.
While newspapers only allowed oneway communication,
the internet makes twoway 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
indicated that the restrictions were necessary and in compliance
with the law. They have also submitted that normalcy is
18
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, Cr.P.C.
and other orders under the Suspension Rules?
II. Whether the freedom of speech and expression and
freedom to practise any profession, or to carry on any
occupation, trade or business over the Internet is a part of
the fundamental rights under Part III of the Constitution?
III. Whether the Government’s action of prohibiting internet
access is valid?
IV. Whether the imposition of restrictions under Section 144,
Cr.P.C. were valid?
V. Whether the freedom of press of the Petitioner in W.P. (C)
No. 1031 of 2019 was violated due to the restrictions?
D. PRODUCTION OF ORDERS
11. The present petitions, their context and conduct of the parties,
have placed this Court in a peculiar situation. We have been
19
asked to go into the question of the validity of orders, restricting
movement and communication, passed in the State of Jammu
and Kashmir by various authorities, however, the orders are not
before us. The Petitioners and Intervenors claim that the orders
were not available, which is why they could not place them on
record.
12. At the same time, while the nonavailability of orders was not
denied by the RespondentState, they did not produce the said
orders. In fact, when this Court by order dated 16.10.2019 asked
them to produce the orders, the RespondentState placed on
record only sample orders, citing difficulty in producing the
numerous orders which were being withdrawn and modified on a
daytoday basis. The RespondentState also claimed that the
plea to produce orders by the Petitioners was an expansion of the
scope of the present petitions.
13. At the outset, a perusal of the prayers in the Writ Petitions before
us should be sufficient to reject the aforementioned contention of
the RespondentState. In W.P. (C) No. 1164 of 2019 and I.A no.
157139 in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 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
20
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.”
(emphasis supplied)
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
21
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 natural law, that no
law should be passed in a clandestine manner. As Lon L. Fuller
suggests in his celebrated article “there can be no greater legal
monstrosity than a secret statute”.1
In this regard, Jeremy
Bentham spoke about open justice as the “keenest spur to
exertion”. In the same context, James Madison stated “a popular
government, without popular information, or the means of
acquiring it, is but a prologue to a farce or a tragedy; or perhaps
both. Knowledge will forever govern the ignorance and a people
1Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law
Review, 71(4), 630, 651 [February, 1958].
22
who mean to be their own Governors must arm themselves with
the power which knowledge gives”.
17. As a general principle, on a challenge being made regarding the
curtailment of fundamental rights as a result of any order passed
or action taken by the State which is not easily available, the
State should take a proactive approach in ensuring that all the
relevant orders are placed before the Court, unless there is some
specific ground of privilege or countervailing public interest to be
balanced, which must be specifically claimed by the State on
affidavit. In such cases, the Court could determine whether, in
the facts and circumstances, the privilege or public interest claim
of the State overrides the interests of the Petitioner. Such portion
of the order can be redacted or such material can be claimed as
privileged, if the State justifies such redaction on the grounds, as
allowed under the law.
18. In the present case, while the State initially claimed privilege, it
subsequently dropped the claim and produced certain sample
orders, citing difficulty in producing all the orders before this
Court. In our opinion, this is not a valid ground to refuse
production of orders before the Court.
23
E. FUNDAMENTAL RIGHTS UNDER PART III 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
24
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 socioeconomic 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 cyberspace has been phenomenal in the past decade,
wherein the limitation of storage space and accessibility of print
medium has been remedied by the usage of internet.
23. At this point it is important to note the argument of Mr. Vinton
G. Cerf, one of the ‘fathers of the internet’. He argued that while
the internet is very important, however, it cannot be elevated to
the status of a human right.2
Technology, in his view, is an
enabler of rights and not a right in and of itself. He distinguishes
2 Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04,
2012).
25
between placing technology among the exalted category of other
human rights, such as the freedom of conscience, equality etc.
With great respect to his opinion, the prevalence and extent of
internet proliferation cannot be undermined in one’s life.
24. Law and technology seldom mix like oil and water. There is a
consistent criticism that the development of technology is not met
by equivalent movement in the law. In this context, we need to
note that the law should imbibe the technological development
and accordingly mould its rules so as to cater to the needs of
society. Non recognition of technology within the sphere of law is
only a disservice to the inevitable. In this light, the importance of
internet cannot be underestimated, as from morning to night we
are encapsulated within the cyberspace and our most basic
activities are enabled by the use of internet.
25. We need to distinguish between the internet as a tool and the
freedom of expression through the internet. There is no dispute
that freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as
is possible. The wider range of circulation of information or its
greater impact cannot restrict the content of the right nor can it
26
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
27
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 and
technology have opened up vast business avenues and
transformed India as a global IT hub. There is no doubt that
there are certain trades which are completely dependent on the
internet. Such a right of trade through internet also fosters
consumerism and availability of choice. Therefore, the freedom of
trade and commerce through the medium of the internet is also
constitutionally protected under Article 19(1)(g), subject to the
restrictions provided under Article 19(6).
28
28. None of the counsels have argued for declaring the right to access
the internet as a fundamental right and therefore we are not
expressing any view on the same. We are confining ourselves to
declaring that the right to freedom of speech and expression
under Article 19(1)(a), and the right to carry on any trade or
business under 19(1)(g), using the medium of internet is
constitutionally protected.
29. Having explained the nature of fundamental rights and the utility
of internet under Article 19 of the Constitution, we need to
concern ourselves with respect to limitations provided under the
Constitution on these rights. With respect to the freedom of
speech and expression, restrictions are provided under Article
19(2) of the Constitution, which reads as under:
“(2) Nothing in sub clause (a) of clause (1) shall
affect the operation of any existing law, or
prevent the State from making any law, in so
far as such law imposes reasonable
restrictions on the exercise of the right
conferred by the said subclause in the
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.”
29
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
30
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 respect to Article 19(2) of the Constitution. (i)
Restriction on free speech and expression may include cases of
prohibition. (ii) There should not be excessive burden on free
speech even if a complete prohibition is imposed, and the
government has to justify imposition of such prohibition and
explain as to why lesser alternatives would be inadequate. (iii)
Whether a restriction amounts to a complete prohibition is a
question of fact, which is required to be determined by the Court
31
with regard to the facts and circumstances of each case. [refer to
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,
(2005) 8 SCC 534].
34. The second prong of the test, wherein this Court is required to
find whether the imposed restriction/prohibition was least
intrusive, brings us to the question of balancing and
proportionality. These concepts are not a new formulation under
the Constitution. In various parts of the Constitution, this Court
has taken a balancing approach to harmonize two competing
rights. In the case of Minerva Mills Ltd. v. Union of India,
(1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company
v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147, this Court
has already applied the balancing approach with respect to
fundamental rights and the directive principles of State Policy.
35. Before, we delve into the nuances of ‘restriction’ as occurring
under Article 19(2) of the Constitution, we need to observe
certain facts and circumstances in this case. There is no doubt
that Jammu and Kashmir has been a hot bed of terrorist
insurgencies for many years. In this light, we may note the
State’s submission that since 1990 to 2019 there have been
32
71,038 recorded incidents 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 farreaching
3 Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l
L. 789 (2007).
33
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 freedom
of speech was imposed due to the fact that there were national
security issues over and above a law and order situation, wherein
there were problems of infiltration and support from the other
side of the border to instigate violence and terrorism. The learned
Solicitor General pointed out that the ‘war on terrorism’ requires
imposition of such restriction so as to nip the problem of
terrorism in the bud. He submitted that in earlier times,
sovereignty and integrity of a State was challenged only on
occurrence of war. In some cases, there have been instances
4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing
with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005).
34
where the integrity of the State has been challenged by
secessionists. However, the traditional conceptions of warfare
have undergone an immense change and now it has been
replaced by a new term called ‘war on terror’. This war, unlike the
earlier ones, is not limited to territorial fights, rather, it
transgresses into other forms affecting normal life. The fight
against terror cannot be equated to a law and order situation as
well. In this light, we observe that this confusion of
characterising terrorism as a war stricto sensu or a normal law
and order situation has plagued the submission of the
respondent Government and we need to carefully consider such
submissions.
38. Before analysing the restrictions imposed on the freedom of
speech and expression in the Indian context, we need to have a
broad analysis of the state of affairs in the United States of
America (hereinafter ‘US’) where freedom of expression under the
First Amendment is treated to be very significant with the US
being perceived to be one of the liberal constituencies with
respect to free speech jurisprudence. However, we need to refer to
the context and state of law in the US, before we can understand
such an assertion.
35
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 fivemember 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 less disagreeable means of
securing least restrictive measures.
36
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
produces or is intended to produce a clear and
imminent danger that it will bring about
forthwith certain substantive evils that the
United States constitutionally may seek to
prevent. The power undoubtedly is greater
in time of war than in time of peace,
because war opens dangers that do not exist
at other times.”
(emphasis supplied)
41. The Second World War was also riddled with instances of tussle
between the First Amendment and national security issues. An
instance of the same was the conviction of William Dudley Pelley,
37
under the Espionage Act, 1917, which the Supreme Court of
United States refused to review.
42. During the Cold War, the attention of the American Congress was
on the increase of communism. In 1954, Congress even enacted
the Communist Control Act, which stripped the Communist party
of all rights, privileges and immunities. During this time, Dennis
v. United States, 341 US 494 (1951), is an important precedent.
Sections 2(a)(1), 2(a)(3) and 3 of the Alien Registration Act, 1940
made it unlawful for any person to knowingly or wilfully advocate
with the intent of the overthrowing or destroying the Government
of the United States by force or violence, to organize or help to
organize any group which does so, or to conspire to do so. The
Petitioner in the aforementioned case challenged the aforesaid
provision on the ground that these provisions violated the First
Amendment. The US Supreme Court held:
“An analysis of the leading cases in this Court
which have involved direct limitations on
speech, however, will demonstrate that both
the majority of the Court and the dissenters in
particular cases have recognized that this is
not an unlimited, unqualified right, but that
the societal value of speech must, on occasion,
be subordinated to other values and
considerations.”
38
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 overruled 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 peaceloving 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 dealing with war predictably leads
to sweeping incursions on fundamental
liberties.”
5 Senate Judiciary Committee Hearing on AntiTerrorism Policy, 106th Cong. (Dec. 6, 2001)
(testimony of Attorney General John Ashcroft)
6 Ackerman, Bruce, "The Emergency Constitution", Faculty Scholarship Series, 113 (2004).
39
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 integrity
of India. The question is one of extent rather than the existence
of the power to restrict.
47. The requirement of balancing various considerations brings us to
the principle of proportionality. In the case of K. S. Puttaswamy
(Privacy9J.) (supra), this Court observed:
“310…Proportionality is an essential facet of
the guarantee against arbitrary State action
because it ensures that the nature and quality
of the encroachment on the right is not
disproportionate to the purpose of the law...”
40
48. Further, in the case of CPIO v Subhash Chandra Aggarwal,
(2019) SCC OnLine SC 1459, the meaning of proportionality was
explained as:
“225…It is also crucial for the standard of
proportionality to be applied to ensure that
neither right is restricted to a greater extent
than necessary to fulfil the legitimate interest
of the countervailing interest in question…”
49. At the same time, we need to note that when it comes to
balancing national security with liberty, we need to be cautious.
In the words of Lucia Zedner7
:
“Typically, conflicting interests are said to be
‘balanced’ as if there were a selfevident
weighting of or priority among them. Yet rarely
are the particular interests spelt out, priorities
made explicitly, or the process by which a
weight is achieved made clear. Balancing is
presented as a zerosum game in which more
of one necessarily means less of the other …
Although beloved of constitutional lawyers and
political theorists, the experience of criminal
justice is that balancing is a politically
dangerous metaphor unless careful regard is
given to what is at stake.”
50. 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
7Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice,
(2005) 32 Journal of Law and Society 510.
41
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 ‘allornothing
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 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.
8Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights (1984)
153 (hereinafter Dworkin, “Rights as is trumps”).
42
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 which has greater
weight in this context.11 Therefore, he argues that nature of
principles implies the principle of proportionality.12
53. The doctrine of proportionality is not foreign to the Indian
Constitution, considering the use of the word ‘reasonable’ under
Article 19 of the Constitution. In a catena of judgments, this
Court has held “reasonable restrictions” are indispensable for the
realisation of freedoms enshrined under Article 19, as they are
what ensure that enjoyment of rights is not arbitrary or
excessive, so as to affect public interest. This Court, while sitting
9R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).
10Ibid at page 47.
11Ibid, page 50.
12Ibid, page 66.
43
in a Constitution Bench in one of its earliest judgments in
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC
118 interpreted limitations on personal liberty, and the balancing
thereof, as follows:
“7. The phrase “reasonable restriction”
connotes that the limitation imposed on a
person in enjoyment of the right should not
be arbitrary or of an excessive nature,
beyond what is required in the interests of
the public. The word “reasonable” implies
intelligent care and deliberation, that is, the
choice of a course which reason
dictates. Legislation which arbitrarily or
excessively invades the right cannot be said to
contain the quality of reasonableness and
unless it strikes a proper balance between the
freedom guaranteed in Article 19(1)(g) and the
social control permitted by clause (6) of Article
19, it must be held to be wanting in that
quality.”
(emphasis supplied)
This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,
while laying down the test of reasonableness, held that:
15. … It is 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
44
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….
(emphasis supplied)
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 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.”
(emphasis supplied)
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:
45
28. By “proportionality”, we mean the
question whether, while regulating exercise
of fundamental rights, the appropriate or
leastrestrictive 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 adverse effects which the
legislation or the administrative order may
have on the rights, liberties or interests of
persons keeping in mind the purpose which
they were intended to serve”. The legislature
and the administrative authority are, however,
given an area of discretion or a range of
choices but as to whether the choice made
infringes the rights excessively or not is for the
court. That is what is meant by
proportionality.
(emphasis supplied)
[See also State of Bihar v. Kamla Kant Misra, (1969) 3 SCC
337; Bishambhar Dayal Chandra Mohan v. State of Uttar
Pradesh, (1982) 1 SCC 39]
54. Recently, this Court in Modern Dental College & Research
Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held
that no constitutional right can be claimed to be absolute in a
realm where rights are interconnected to each other, and limiting
46
some rights in public interest might therefore be justified. The
Court held as follows:
“62. It is now almost accepted that there
are no absolute constitutional rights.
[Though, debate on this vexed issue still
continues and some constitutional experts
claim that there are certain rights, albeit very
few, which can still be treated as “absolute”.
Examples given are:(a) Right to human dignity
which is inviolable, (b) Right not to be
subjected to torture or to inhuman or
degrading treatment or punishment. Even in
respect of such rights, there is a thinking
that in larger public interest, the extent of
their protection can be diminished.
However, so far such attempts of the States
have been thwarted by the judiciary.] … 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...”
(emphasis supplied)
47
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
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 multifaceted
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 one hand and its limitation on the other
hand—is to be resolved by balancing the two
so that they harmoniously coexist with each
other. This balancing is to be done keeping
48
in mind the relative social values of each
competitive aspects when considered in
proper context.”
(emphasis supplied)
56. The next conundrum faced by the Court was in achieving the
requisite balance, the solution for which was derived from the
principle of proportionality. The eminent constitutional jurist, Kai
Möller states that the proportionality principle is the doctrinal
tool which guides Judges through the process of resolving these
conflicts.
13 One of the theories of proportionality widely relied
upon by most theorists is the version developed by the German
Federal Constitutional Court. The aforesaid doctrine lays down a
four pronged test wherein, first, it has to be analysed as to
whether the measure restricting the rights serves a legitimate
goal (also called as legitimate goal test), then it has to be
analysed whether the measure is a suitable means of furthering
this goal (the rational connection stage), next it has to be
assessed whether there existed an equally effective but lesser
restrictive alternative remedy (the necessity test) and at last, it
should be analysed if such a measure had a disproportionate
impact on the rightholder (balancing stage). One important
13Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford University Press,
2012).
49
feature of German test is the last stage of balancing, which
determines the outcome as most of the important issues are
pushed to the balancing stage and the same thereby dominates
the legal analysis. Under 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):
14Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation,
Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).
50
“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 Charter
right or freedom, and the objective which
has been identified as of “sufficient
importance”... The more severe the
deleterious effects of a measure, the more
important the objective must be if the measure
is to be reasonable and demonstrably justified
in a free and democratic society.”
(emphasis supplied)
58. As can be seen, there exists substantial difference in both
approaches, as the Oakes test, instead of requiring “any”
51
legitimate goal, demands the same to be compelling enough to
warrant the limitation of constitutional rights. Additionally, while
the German necessity test calls for a lesser restrictive measure
which is equivalently effective, the need for effectiveness has been
done away with in the Oakes test wherein the requirement of
least infringing measure has been stipulated.
59. It is also imperative for us to place reliance on Aharon Barak’s
seminal book15 on proportionality upon which Dr A.K. Sikri, J.
placed reliance while expounding the doctrine of proportionality
in Modern Dental College case (supra) as follows:
“60. … a limitation of a constitutional right will
be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such
a limitation are rationally connected to the
fulfilment of that purpose;
(iii) the measures undertaken are necessary in
that there are no alternative measures that
may similarly achieve that same purpose
with a lesser degree of limitation; and finally
(iv) 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.”
(emphasis supplied)
15Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge
University Press, 2012)
52
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 subclauses 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
53
restrictions are imposed or upon abstract
considerations (see Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731).”
(emphasis supplied)
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 direction, the next question that
arises is as to what criteria is to be adopted for
a proper balance between the two facets viz.
the rights and limitations imposed upon it by a
statute. Here comes the concept of
“proportionality”, which is a proper
criterion. To put it pithily, when a law
limits a constitutional right, such a
limitation is constitutional if it is
proportional. The law imposing restrictions
will be treated as proportional if it is meant to
achieve a proper purpose, and if the measures
taken to achieve such a purpose are rationally
connected to the purpose, and such measures
are necessary...
64. The exercise which, therefore, is to be
taken is to find out as to whether the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise
involves the weighing up of competitive values,
and ultimately an assessment based on
proportionality i.e. balancing of different
interests.”
(emphasis supplied)
54
62. While some scholars such as Robert Alexy16 call for a strong
interpretation of the necessity stage as it has direct impact upon
the realisation and optimisation of constitutional rights while
others such as David Bilchitz17 found significant problems with
this approach.
63. First, Bilchitz focuses on the issues arising out of both the
German test and the Oakes test, wherein the former treats all
policies to be necessary by justifying that the available
alternatives may not be equally effective, 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.
16Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002)
47.
17David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L.
Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).
55
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 various stages of the moderate interpretation of
necessity.”
18 He therefore recommends a fourstep inquiry which
is listed below:19
(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;
18 Ibid, page 61.
19Ibid, page 61.
56
(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 alternatives. A judgement must be made
whether the government measure is the best of
all feasible alternatives, considering both the
degree to which it realises the government
objective and the degree of impact upon
fundamental rights (‘the comparative
component’).
65. Admittedly, fundamental rights may not be absolute, however,
they require strong protection, thereby mandating a sensible
necessity test as the same will prevent the fundamental right
from becoming either absolute or to be diminished. Bilchitz,
describes the aforesaid test to be neither factual nor mechanical,
but rather normative and qualitative. He states that “[t]he key
purpose of the necessity enquiry is to offer an explicit
consideration of the relationship between means, objectives and
rights… Failure to conduct the necessity enquiry with diligence,
however, means that a government measure can escape close
57
scrutiny in relation to both the realisation of the objective and its
impact upon fundamental rights.”
20
66. Taking into consideration the aforesaid analysis, Dr. Sikri, J., in
K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1
(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the
test laid down in Modern Dental College Case (supra) which was
based on the German Test and modulated the same as against
the tests laid down by Bilchitz. Therein this Court held that:
“157. In Modern Dental College & Research
Centre [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353], four
subcomponents 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 rightholder
(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
20Ibid, 62
58
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 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.”
(emphasis supplied)
67. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar5J.)
(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 our
Constitution for violations of privacy to be
justified. This included the test of
proportionality: (SCC p. 509, para 325)
59
“325. … A law which encroaches
upon privacy will have to withstand
the touchstone of permissible
restrictions on fundamental rights.
In the context of Article 21 an
invasion of privacy must be justified
on the basis of a law which
stipulates a procedure which is fair,
just and reasonable. The law must
also be valid with reference to the
encroachment on life and personal
liberty under Article 21. An
invasion of life or personal liberty
must meet the threefold
requirement of (i) legality, which
postulates the existence of law;
(ii) need, defined in terms of a
legitimate State aim; and (iii)
proportionality which ensures a
rational nexus between the
objects and the means adopted to
achieve them.”
The third principle [(iii) above] adopts the test
of proportionality to ensure a rational
nexus between the objects and the means
adopted to achieve them. The essential role
of the test of proportionality is to enable the
court to determine whether a legislative
measure is disproportionate in its interference
with the fundamental right. In determining
this, the court will have regard to whether a
less intrusive measure could have been
adopted consistent with the object of the law
and whether the impact of the encroachment
on a fundamental 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
60
opinion, suggested a fourpronged 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.”
(emphasis supplied)
68. After applying the aforesaid doctrine in deciding the
constitutional validity of the Aadhaar scheme, Dr. Chandrachud,
J., in the K.S. Puttaswamy (Aadhaar5J.) 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 State aim;
1324.2. The justification for rightsinfringing
measures that interfere with or limit the
exercise of fundamental rights and
61
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
data must at all times vest in the
individual whose data is collected. The
individual must have a right of access to
the data collected and the discretion to
opt out.”
(emphasis supplied)
69. This is the current state of the doctrine of proportionality as it
exists in India, wherein proportionality is the key tool to achieve
62
judicial balance. But many scholars are not agreeable to
recognize proportionality equivalent to that of balancing.21
70. In view of the aforesaid discussion, we may summarize the
requirements of the doctrine of proportionality which must be
followed by the authorities before passing any order intending on
restricting fundamental rights of individuals. In the first stage
itself, the possible goal of such a measure intended at imposing
restrictions must be determined. It ought to be noted that such
goal must be legitimate. However, before settling on the aforesaid
measure, the authorities must assess the existence of any
alternative mechanism in furtherance of the aforesaid goal. The
appropriateness of such a measure depends on its implication
upon the fundamental rights and the necessity of such measure.
It is undeniable from the aforesaid holding that only the least
restrictive measure can be resorted to by the State, taking into
consideration the facts and circumstances. Lastly, since the
order has serious implications on the fundamental rights of the
21Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 C.L.J. 174
(hereinafter Rivers, “Proportionality”); Martin Luteran, Towards Proportionality as a
Proportion Between Means and Ends in Cian C. Murphy and Penny Green (eds.), Law and
Outsiders: Norms, Processes and “Othering” in the 21st Century (2011) (hereinafter Luteran,
“Towards Proportionality”); see also the contribution of Alison L. Young in Chapter 3 of this
volume.
63
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 Petitioners have relied
on a recent judgment of the High Court of Hong Kong, in Kwok
64
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 “antimask” 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 respondentState 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 accepted by
this Court.
76. However, there is ample merit in the contention of the
Government that the internet could be used to propagate
terrorism thereby challenging the sovereignty and integrity of
65
India. This Court would only observe that achievement of peace
and tranquillity within the erstwhile State of Jammu and
Kashmir requires a multifaceted approach without excessively
burdening the freedom of speech. In this regard the Government
is required to consider various options under Article 19(2) of the
Constitution, so that the brunt of exigencies is decimated in a
manner which burdens freedom of speech in a minimalist
manner.
77. Having discussed the general constitutional ambit of the
fundamental rights, proportionality and reasonable restrictions,
and a specific discussion on freedom of expression through the
internet and its restriction under Article 19(2), we now need to
analyse the application of the same in the present case.
F. INTERNET SHUTDOWN
78. Having observed the substantive law concerning the right to
internet and the restrictions that can be imposed on the same,
we need to turn our attention to the procedural aspect.
79. It must be noted that although substantive justice under the
fundamental rights analysis is important, procedural justice
cannot be sacrificed on the altar of substantive justice. There is a
66
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 (Privacy9J.) 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 Criminal Procedure Code, 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 Court, in the Shreya
Singhal case (supra), upheld the constitutional validity of this
67
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,
Cr.P.C., 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, Cr.P.C. 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 imposed by the
Magistrate under Section 144, Cr.P.C. While the Court did not
undertake a fullfledged discussion of the power of the Magistrate
to issue such restrictions under Section 144, Cr.P.C., the Court
observed as follows:
68
“9.…[U]nder Section 144 of the Code,
directions may be issued to certain persons
who may be the source for extending the
facility of internet access. Under the
circumstances, we do not find that the
contention raised on behalf of the petitioner
that the resort to only Section 69A was
available and exercise of power under Section
144 of the Code was unavailable, can be
accepted.”
(emphasis supplied)
A Special Leave Petition was filed against the above judgment of
the Gujarat High Court, being SLP (C) No. 601 of 2016, which
was dismissed by this Court in limine on 11.02.2016.
83. The position has changed since 2017, with the passage of the
Suspension Rules under Section 7 of the Telegraph Act. With the
promulgation of the Suspension Rules, the States are using the
aforesaid Rules to restrict telecom services including access to
the internet.
84. The Suspension Rules lay down certain safeguards, keeping in
mind the fact that an action under the same has a large effect on
the fundamental rights of citizens. 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
69
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 incharge 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
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 subrule (1) shall contain
70
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
subrule (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 in every
licensed service area or State or Union
territory, as the case may be, as the nodal
officers to receive and handle such requisitions
for suspension of telecom services.
(5) The Central Government or the State
Government, as the case may be, shall
constitute a Review Committee.
(i) The Review Committee to be constituted by
the Central Government shall consist of the
following, namely:
(a) Cabinet SecretaryChairman;
(b) Secretary to the Government of India
Incharge, Legal AffairsMember;
(c) Secretary to the Government,
Department of Telecommunications
Member.
(ii) The Review Committee to be constituted by
the State Government shall consist of the
following, namely:
71
(a)Chief SecretaryChairman;
(b)Secretary Law or Legal
Remembrancer InCharge, Legal
AffairsMember;
(c)Secretary to the State Government (other
than the Home Secretary) Member.
(6) The Review Committee shall meet within
five working days of issue of directions for
suspension of services due to public
emergency or public safety and record its
findings whether the directions issued under
subrule (1) are in accordance with the
provisions of subsection (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
subrule 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
72
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 twentyfour hours, failing which,
as per the second proviso, the order of suspension will cease to
exist. The confirmation of the order by the competent authority is
therefore essential, 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.
73
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 authority to the order passed by the authorised
officer, who must also take into account changed circumstances
if any, etc. After all, it is the competent authority who has been
given the power under the Suspension Rules to suspend telecom
services, with the authorised officer acting under the Suspension
Rules only due to some exigent circumstances.
88. The second requirement under Rule 2(2) is the forwarding of the
reasoned order of the competent authority to a Review Committee
which has been set up under the Suspension Rules, within one
working day. The composition of the Review Committee is
provided under Rule 2(5), with two distinct review committees
contemplated for the Union and the State, depending on the
competent authority which issued the order under Rule 2(1).
Rule 2(6) is the final internal check under the Suspension Rules
with respect to the orders issued thereunder. Rule 2(6) requires
the concerned Review Committee to meet within five working
74
days of issuance of the order suspending telecom services, and
record its findings about whether the order issued under the
Suspension Rules is in accordance with the provisions 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 or received by
any telegraph, shall not be transmitted, or
shall be intercepted or detained, or shall be
disclosed to the Government making the order
or an officer thereof mentioned in the order:
75
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
subsection.”
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 FourJudge 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 prerequisite for the
exercise of power under this section, must be a
“public emergency” and not any other kind of
emergency. The expression public emergency
has not been defined in the statute, but
contours broadly delineating its scope and
features are discernible from the section which
has to be read as a whole. In subsection (1)
the phrase ‘occurrence of any public
76
emergency’ is connected with and is
immediately followed by the phrase “or in
the interests of the public safety”. These
two phrases appear to take colour from
each other. In the first part of subsection
(2) those two phrases again occur in
association with each other, and the
context further clarifies with amplification
that a “public emergency” within the
contemplation of this section is one which
raises problems concerning the interest of
the public safety, the sovereignty and
integrity of India, the security of the State,
friendly relations with foreign States or
public order or the prevention of
incitement to the commission of an
offence. It is in the context of these matters
that the appropriate authority has to form an
opinion with regard to the occurrence of a
public emergency with a view to taking further
action under this section...”
(emphasis supplied)
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 phonetapping 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
77
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 mind the wordings of the section, and the above two
pronouncements of this Court, what emerges is that the prerequisite for an order to be passed under this subsection, 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 subsection pertaining to “sovereignty and integrity of India,
the security of the State, friendly relations with foreign states or
78
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 of public emergency which threatens
the life of the nation and the existence of which is officially
proclaimed...’. Comparable language has also been used in Article
15 of the European Convention on Human Rights which says "In
time of war or other public emergency threatening the life of the
nation". We may only point out that the ‘public emergency’ is
required to be of serious nature, and needs to be determined on a
case to case basis.
94. The second requirement of Section 5(2) of the Telegraph Act is for
the authority to be satisfied that it is necessary or expedient to
pass the orders in the interest of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign
79
states or public order or for preventing incitement to the
commission of an offence, and must record reasons thereupon.
The term ‘necessity’ and ‘expediency’ brings along the stages an
emergency is going to pass through usually. A public emergency
usually would involve different stages and the authorities are
required to have regards to the 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
80
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 publication or notification of the orders, a settled
principle of law, and of natural justice, is that an order,
particularly one 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
81
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 as follows:
“18. It is wellsettled that where a power is
required to be exercised by a certain
authority in a certain way, it should be
exercised in that manner or not at all, and
all other amodes ( sic) of performance are
necessarily forbidden. It is all the more
necessary to observe this rule where power is
of a drastic nature...”
(emphasis supplied)
This applies with even more force considering the large public
impact on the right to freedom of speech and expression that
such a broadbased restriction would have.
99. Lastly, we think it necessary to reiterate that complete broad
suspension of telecom services, be it the Internet or otherwise,
being a drastic measure, must be considered by the State only if
‘necessary’ and ‘unavoidable’. In furtherance of the same, the
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State must assess the existence of an alternate less intrusive
remedy. Having said so, we may note that the aforesaid
Suspension Rules have certain gaps, which are required to be
considered by the legislature.
100. One of the gaps which must be highlighted relates to the usage 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
83
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 restrictions contemplated under the Suspension Rules are
temporary in nature, the same must not be allowed to extend
beyond that time period which 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
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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 services, that the same could not be done.
However, the State should have attempted to determine the
feasibility of such a measure. As all the orders have not been
placed before this Court and there is no clarity as to which orders
are in operation and which have already been withdrawn, as well
as the apprehension raised in relation to the possibility of public
order situations, we have accordingly moulded the relief in the
operative portion.
G. RESTRICTIONS UNDER SECTION 144 OF CRPC.
“As emergency does not shield the actions of Government
completely; disagreement does not justify destabilisation;
the beacon of rule of law shines always.”
103. The Petitioners have asserted that there were no disturbing facts
which warranted the imposition of restrictions under Section
144, Cr.P.C. on 04.08.2019. They strenuously argued that there
85
had to be a circumstance on 04.08.2019 showing that there
would be an action which will likely create obstruction,
annoyance or injury to any person or will likely 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,
Cr.P.C.
105. These contentions require us to examine the scope of Section
144, Cr.P.C, 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 Subdivisional Magistrate or any
other Executive Magistrate specially
empowered by the State Government in this
behalf, there is sufficient ground for proceeding
86
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 Section 134, direct any person to
abstain from a certain act or to take certain
order with respect to certain property in his
possession or under his management, if such
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:
87
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 the Magistrate would have, but for such
order, expired, as it may specify in the said
notification.
(5) Any Magistrate may, either on his own
motion or on the application of any person
aggrieved, rescind or alter any order made
under this section, by himself or any
Magistrate subordinate to him or by his
predecessorinoffice.
(6) The State Government may, either on its
own motion or on the application of any person
aggrieved, rescind or alter any order made by it
under the proviso to subsection (4).
(7) Where an application under subsection (5)
or subsection (6) is received, the Magistrate,
or the State Government, as the case may be,
shall afford to the applicant an early
opportunity of appearing before him or it, either
in person or by pleader and showing cause
88
against the order; and if the Magistrate or the
State Government, as the case may be, rejects
the application wholly or in part, he or it shall
record in writing the reasons for so doing.
106. Section 144, Cr.P.C. is one of the mechanisms that enable the
State to maintain public peace. It forms part of the Chapter in
the Criminal Procedure Code dealing with “Maintenance of Public
Order and Tranquillity” and is contained in the subchapter 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, Cr.P.C. 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.
89
108. The aforesaid safeguards in Section 144, Cr.P.C. are discussed
below and deserve close scrutiny.
(a) Prior Inquiry before issuing Order: Before issuing an order
under Section 144, Cr.P.C., the District Magistrate (or any
authorised Magistrate) must be of the opinion that:
i. There is a sufficient ground for proceeding under this
provision 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
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weighed with the Magistrate to issue an order under Section
144, Cr.P.C.
(c) Communication of the Order: The Order must be served in
the manner provided under Section 134, Cr.P.C., i.e., served
on the person against whom it is made. If such a course of
action is not practicable, it must be notified by proclamation
and publication so as to convey the information to persons
affected by the order. Only in case of an emergency or where
the circumstances are such that notice cannot be served on
such a person, can the order be passed ex parte.
(d) Duration of the Order: As this power can only be exercised
in urgent cases, the statute has incorporated temporal
restrictions—the order cannot be in force for more than two
months. However, the State Government can extend an order
issued under Section 144, Cr.P.C. by a Magistrate for a
further period up to six months if the State Government
considers it necessary for preventing danger to human life,
health or safety or preventing a riot.
Although, a twomonth period outer limit for the Magistrate,
and a sixmonth limit for the State Government, has been
provided under Section 144, Cr.P.C. but the concerned
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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, Cr.P.C. 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, Cr.P.C. has been the subject matter of several
Constitution Bench rulings and we will briefly examine them. The
constitutional validity of Section 144, Cr.P.C. 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).
92
Repelling the contention that it is an infringement of the
fundamental right of assembly, this Court upheld the provision
due to the various safeguards inbuilt under Section 144, Cr.P.C.
This Court opined that:
a. Section 144, Cr.P.C does not confer arbitrary power on
the Magistrate, since it must be preceded by an inquiry.
b. Although Section 144, Cr.P.C 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,
Cr.P.C 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, Cr.P.C 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 distinguish between
members of the public and the people engaging in
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unlawful activity. However, any affected person can
always apply to the Magistrate under Section 144(4),
Cr.P.C. seeking exemption or modification of the order
to permit them to carry out any lawful activity.
f. If any person makes an application for modification or
alteration of the order, the Magistrate has to conduct a
judicial proceeding by giving a hearing, and give the
reasons for the decision arrived at.
g. The order of the Magistrate under Section 144, Cr.P.C is
subject to challenge before the High Court. The High
Court’s revisionary powers are wide enough to quash an
order which cannot be supported by the materials upon
which the order is supposed to be based.
h. If any prosecution is launched for noncompliance of an
order issued under Section 144, Cr.P.C., the validity of
such an order under Section 144, Cr.P.C. 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), Cr.P.C as it
then existed, which enabled the State Government to extend an
order passed under Section 144, Cr.P.C. indefinitely, as
unconstitutional, since it did not provide limitations on the
duration of the order and no mechanism was provided therein to
94
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 reconsider the law laid down in Babulal Parate
(supra) and the constitutional validity of Section 144, Cr.P.C.
This Court, while affirming the constitutional validity of Section
144, Cr.P.C. reiterated the safeguards while exercising the power
under Section 144, Cr.P.C. The Court highlighted that the power
under Section 144, Cr.P.C. must be:
(a)exercised in urgent situations to prevent harmful
occurrences. Since this power can be exercised
absolutely and even ex parte, “the emergency must be
sudden 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
95
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, Criminal Procedure Code 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 be abated and
prevented. …..In so far as the other parts of
the section are concerned the keynote 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 proportions to bring the
matter within interests of public order.”
(emphasis supplied)
112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC
226, this Court, in deciding a review petition, elaborated on the
circumstances in which the power under Section 144, Cr.P.C.
can be exercised. This Court held as under:
96
“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 Criminal
Procedure Code 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, Cr.P.C.”
(emphasis supplied)
113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71,
this Court held that an order passed under Section 144, Cr.P.C.
is an executive order which can be questioned in exercise of writ
jurisdiction under Article 226 of the Constitution. The Court
reiterated the circumstances in which the power can be
exercised. The Court observed as under:
“27. The entire basis of action under Section
144 is provided by the urgency of the
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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 wrongdoer 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
administration to impose restrictions which
would affect only a minor section of the
community rather than prevent a larger
section more vociferous and militant.
33. ...It is only in an extremely
extraordinary situation, when other
measures are bound to fail, that a total
prohibition or suspension of their rights
may be resorted to as a last measure.”
98
(emphasis supplied)
114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of
Police, Calcutta, (1983) 4 SCC 522, a Bench of three Judges
expressed doubts about the dicta in the Gulam Abbas case
(supra) on the nature of the order under Section 144, Cr.P.C. but
reiterated that repetitive orders under Section 144, Cr.P.C. would
be an abuse of power. This Court observed as follows:
“16…. 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.”
(emphasis supplied)
115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court
emphasised the safeguards under Section 144, Cr.P.C. 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, Cr.P.C. as there existed no incumbent
99
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,
Cr.P.C. is a preventive power to preserve public order. In Babulal
Parate case (supra), this Court expressly clarified that this power
can be exercised even where there exists an apprehension of
danger. This Court observed as under:
“25. The language of Section 144 is somewhat
different. The test laid down in the section is
not merely “likelihood” or “tendency”. The
section says that the Magistrate must be
satisfied that immediate prevention of
particular acts is necessary to counteract
danger to public safety etc. The power
conferred by the section is exercisable not
only where present danger exists but is
exercisable also when there is an
apprehension of danger.”
(emphasis supplied)
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
100
from contesting or participating in elections. In this context, it is
sufficient to note that the power under Section 144, Cr.P.C.
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, Cr.P.C. 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, Cr.P.C. will only be applicable in a
situation of emergency and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed [refer to Babulal Parate case (supra)]. It is enough to
note that sufficient safeguards exist in Section 144, Cr.P.C.,
including the presence of judicial review challenging any abuse of
power under the Section, to allay the apprehensions of the
petitioner.
119. The Petitioners have also contended that ‘law and order’ is of a
narrower ambit than ‘public order’ and the invocation of ‘law and
order’ would justify a narrower set of restrictions under Section
144, Cr.P.C.
101
120. In this context, it is pertinent for us to emphasize the holding
rendered by a fiveJudge Bench of this court in Ram Manohar
Lohia v. State of Bihar, AIR 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.”
(emphasis supplied)
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 sevenJudge Bench in Madhu Limaye case
102
(supra) further elucidated as to when and against whom the
power under Section 144, Cr.P.C. can be exercised by the
Magistrate. This Court held therein, as under:
“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…. 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 keynote 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,
103
however, that annoyance must assume
sufficiently grave proportions to bring the
matter within interests of public order.”
(emphasis supplied)
122. This Court in Ramlila Maidan Incident, In re case (supra)
further enunciated upon the aforesaid distinction between a
“public order” and “law and order” situation:
“44. The distinction between “public order”
and “law and order” is a fine one, but
nevertheless clear. A restriction imposed
with “law and order” in mind would be least
intruding into the guaranteed freedom
while “public order” may qualify for a
greater degree of restriction since public
order is a matter of even greater social
concern.
…
45. It is keeping this distinction in mind, the
legislature, under Section 144 CrPC, has
empowered the District Magistrate, SubDivisional 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 144A CrPC, which itself was
introduced by Act 25 of 2005 [Ed.: The
Code of Criminal Procedure (Amendment)
Act, 2005.] , the District Magistrate has
104
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. …”
(emphasis supplied)
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 situation where two communities fight over the
same, the situation might transcend into a public order situation.
However, it has to be noted that a similar approach cannot be
taken to remedy the aforesaid two distinct situations. The
Magistrate cannot apply a straitjacket formula without assessing
the gravity of the prevailing circumstances; the restrictions must
be proportionate to the situation concerned.
124. Learned senior counsel, Mr. Kapil Sibal also contended that an
order under Section 144, Cr.P.C. cannot be issued against the
105
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.”
(emphasis supplied)
125. The counsel on behalf of the Petitioners have argued that the
validity of the aforesaid restrictions has to be tested on its
reasonableness. The restrictions imposed must be proportionate
to the proposed/perceived threat. In the context of restrictions
106
imposed by way of orders passed under Section 144, Cr.P.C., this
Court, in Ramlila Maidan Incident case (supra), held that an
onerous duty is cast upon the concerned Magistrate to first
assess the perceived threat and impose the least invasive
restriction possible. The concerned Magistrate is duty bound to
ensure that the restrictions should never be allowed to be
excessive either in nature or in time. The relevant portion is
extracted below:
“39. There has to be a balance and
proportionality between the right and
restriction on the one hand, and the 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
107
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.”
(emphasis supplied)
126. As discussed above, the decisions of this Court in the Modern
Dental College case (supra) and K.S. Puttaswamy (Aadhaar5J.) case (supra), which brought the concept of proportionality
into the fold, equally apply to an order passed under Section 144,
Cr.P.C.
127. The Petitioners also contended that orders passed under Section
144, Cr.P.C., imposing restrictions, cannot be a subject matter of
privilege. Moreover, material facts must be recorded in the order
itself. On the other hand, the learned Solicitor General argued
that the empowered officers were in the best position to know the
situation on the ground and accordingly the aforesaid orders
were passed. There existed sufficient speculation 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
108
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
CrPC 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 CrPC, such an order is
revisable and is subject to judicial review.
Therefore, it will be appropriate that it
must be an order in writing, referring to the
facts and stating the reasons for imposition
of such restriction. In Praveen Bhai Thogadia
[(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this
Court took the view that the Court, while
dealing with such orders, does not act like an
appellate authority over the decision of the
official concerned. It would interfere only
where the order is patently illegal and
without jurisdiction or with ulterior motive
and on extraneous consideration of political
victimisation by those in power. Normally,
109
interference should be the exception and
not the rule.”
(emphasis supplied)
129. We may note that orders passed under Section 144, Cr.P.C. 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 unnotified.
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. Subsection (1) confers powers not on the
executive but on certain Magistrates…Under
subsection (1) the Magistrate himself has
to form an opinion that there is sufficient
ground for proceeding under this section
110
and immediate prevention or speedy
remedy is desirable. Again the subsection
requires the Magistrate to make an order in
writing and state therein the material facts
by reason of which he is making the order
thereunder. The subsection further
enumerates the particular activities with
regard to which the Magistrate is entitled to
place restraints.”
(emphasis supplied)
130. While passing orders under Section 144, Cr.P.C., it is imperative
to indicate the material facts necessitating passing of such
orders. Normally, it should be invoked and confined to a
particular area or some particular issues. However, in the
present case, it is contended by the Petitioners that the majority
of the geographical area of the erstwhile State of Jammu and
Kashmir was placed under orders passed under Section 144,
Cr.P.C. 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.
111
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, Cr.P.C., 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 to assess and to handle the situation
depending upon the peculiar needs and
necessities within their special knowledge. ……
Therefore, whenever the authorities
concerned in charge of law and order find
that a person’s speeches or actions are
likely to trigger communal antagonism and
hatred resulting in fissiparous tendencies
gaining foothold, undermining and affecting
communal harmony, prohibitory orders
need necessarily to be passed, to effectively
avert such untoward happenings.
7... If they feel that the presence or
participation of any person in the meeting or
congregation would be objectionable, for some
patent or latent reasons as 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
112
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 those in power, and
interference as a matter of course and as
though adjudicating an appeal, will defeat the
very purpose of legislation and legislative
intent…”
(emphasis supplied)
132. It is true that we do not sit in appeal, however, the existence of
the power of judicial review is undeniable. We are of the opinion
that it is for the Magistrate and the State to make an informed
judgement about the likely threat to public peace and law and
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order. The State is best placed to make an assessment of threat
to public peace and tranquillity or law and order. However, 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, Cr.P.C. 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, Cr.P.C. should be indicative
of proper application of mind, which should be based on the
114
material facts and the remedy directed. Proper reasoning links
the application of mind of the officer concerned, to the
controversy involved and the conclusion reached. Orders passed
mechanically or in a cryptic manner cannot be said to be orders
passed in accordance with law.
135. During the course of hearing, on 26.11.2019, the learned
Solicitor General sought the permission of this Court to produce
certain confidential documents to be perused by this Court.
However, he objected to revealing certain documents to the
Petitioners, claiming sensitivity and confidentiality. Learned
senior counsel Mr. Kapil Sibal stated that the Court could
assume the existence of such intelligence inputs and materials.
In view of 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
115
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), Cr.P.C. 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 the
State cross border terrorism, infiltration of militants, security
issues, etc., cannot be forgotten and must be kept in mind while
testing the legality of the orders. Further, the Respondent
submitted that the orders were passed in the aforementioned
context and in the anticipated threat to law and order, to prevent
any loss of life, limb and property. However, these orders do not
explain the aforesaid aspects.
138. Although the restrictions have been allegedly removed on
27.09.2019, thereby rendering the present exercise into a
116
virtually academic one, we cannot ignore noncompliance 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
needbased orders. In view of the same, appropriate directions
are provided in the operative part of this judgment.
140. Before parting we summarise the legal position on Section 144,
Cr.P.C as follows:
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i. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there
exists present danger, but also when there is an
apprehension of danger. However, the danger
contemplated should be in the nature of an “emergency”
and for the purpose of preventing obstruction and
annoyance or injury to any person lawfully employed.
ii. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
iii. An order passed under Section 144, Cr.P.C. 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, Cr.P.C.
the Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter apply the least intrusive measure.
118
v. Repetitive orders under Section 144, Cr.P.C. 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 10082019 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. The English
newspaper, Kashmir Times, was founded in
1954 as a news weekly. It was later converted
to a daily newspaper in 1962 and has regularly
been in print and circulation ever since.
Kashmir Times is a widely read English
newspaper in Jammu and Kashmir, and also
has significant readership in the neighbouring
States of Punjab, Delhi and Himachal Pradesh.
14. On 04082019, sometime during the day,
mobile phone networks, internet services, and
landline phones were all discontinued in the
Kashmir valley and in some districts of Jammu
and Ladakh. No formal orders under which
such action was 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
119
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 05082019, 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 0508
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 0508
2019, the Jammu and Kashmir Reorganisation
Bill, 2019, was introduced in the Rajya Sabha,
and passed. On 06082019, the said Bill was
passed by the Lok Sabha. The President’s
assent was given to the Bill on 09082019.
The Gazette Notification, dt. 09082019 states
that the Jammu and Kashmir Reorganisation
Act, 2019, will come into effect from 31st
October, 2019, and that there shall be a new
Union Territory of Jammu and Kashmir. All of
this was carried out while the State of Jammu
and Kashmir was in a lockdown and silenced
through a communication shutdown.
16. In such Circumstances the Kashmir Times’
Srinagar edition could not be distributed on
05082019 and it could not be published
thereafter from 06082019 to 11102019, as
newspaper publication necessarily requires
news gathering by reporters traveling across
the Valley and unhindered interaction with
public and officials. Due to the indiscriminate
lockdownincluding communication and
internet blackout and severe curbs on
120
movement enforced by the respondents, the
Petitioner was prevented and hindered from
carrying out her profession and work. Even
after 11102019 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 of his assertions, his
criticisms or his comments is as wide as, and
no wider than that of any other subject.”
143. During the drafting of our Constitution, B. N. Rau, while
commenting on the amendments by Jaya Prakash Narayan, who
had proposed a separate freedom of press, had commented in the
following manner:
121
“It is hardly necessary to provide specifically
for the freedom of the press as freedom of
expression provided in subclause (a) of clause
(1) of article 13 will include freedom of the
press...”
144. Thereafter, many judgments of this Court including Bennett
Coleman v. Union of India, (1972) 2 SCC 788, Indian Express
(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, Cr.P.C. and
restriction on internet and communication, has indirectly
affected the freedom of the press in the valley.
122
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. Squarely however, the contention of the
Petitioner rests on the chilling effects alleged to be produced by
the imposition of restrictions as discussed above.
147. Chilling effect has been utilized in Indian Jurisprudence as a
fairly recent concept. Its presence in the United States of America
can be traced to the decision in Weiman v. Updgraff, 344 U.S.
183. We may note that the argument of chilling effect has been
utilized in various contexts, from being purely an emotive
argument to a substantive component under the free speech
adjudication. The 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 “selfproclaiming
instrument”.
123
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.22 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 (Privacy9J.) (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
rights cannot be viewed as silos, rather they should be viewed in
a cumulative manner which may be affected in different ways.
The technical rule of causal link cannot be made applicable in
the case of human rights. Human rights are an inherent feature
of every human and there is no question of the State not
22 Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect
(1978).
124
providing for these rights. In one sense, the restrictions provided
under Article 19(2) of the Constitution follow a utilitarian
approach wherein individualism gives way for commonality of
benefit, if such restrictions are required and demanded by law. In
this context, the test of ‘direct impact’ as laid down in A.K
Gopalan v. State of Madras, 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
125
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 the aforesaid restrictions were
unconstitutional because it has a chilling effect on the freedom of
press generally is to say virtually nothing at all or is saying
something that is purely speculative, unless evidence is brought
before the Court to enable it to give a clear finding, which has not
been placed on record in the present case. [refer to Clapper v
Amnesty Int’l, USA, 568 U.S. 113 (2013)]
151. In this context, one possible test of chilling effect is comparative
harm. In this framework, the Court is required to see whether
the impugned restrictions, due to their broadbased 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 06082019 to 11102019.
However, no evidence was put forth to establish that such other
individuals were also restricted in publishing newspapers in the
126
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 selfserving 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 the following directions:
a. The Respondent State/competent authorities are directed to
publish all orders in force and any future orders under
Section 144, Cr.P.C and for suspension of telecom services,
including internet, to enable the affected persons to
challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and
the freedom to practice any profession or carry on any
trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamental
127
rights should be in consonance with the mandate 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 the law laid down above,
must be revoked. Further, in future, if there is a necessity to
pass fresh orders, the law laid down herein must be
followed.
i. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites,
localized/limited ebanking facilities, hospitals services and
128
other essential services, in those regions, wherein the
internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of
danger. However, the danger contemplated should be in the
nature of an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed.
k. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. 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.
m.While exercising the power under Section 144, Cr.P.C., the
Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
o. The Respondent State/competent authorities are directed to
review forthwith the need for continuance of any existing
orders passed under Section 144, Cr.P.C in accordance with
law laid down above.
129
153. The Writ Petitions are disposed of in the aforestated terms. All
pending applications are also accordingly disposed of.
..............................................J.
(N.V. RAMANA)
..............................................J.
(R. SUBHASH REDDY)
..............................................J.
(B. R. GAVAI)
NEW DELHI;
JANUARY 10, 2020
130
