ANURADHA BHASIN versus UNION OF INDIA & ORS.

[2020] 1 S.C.R. 812

[2020] 1 S.C.R.

ANURADHA BHASIN

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 1031 of 2019)

JANUARY 10, 2020

[N. V. RAMANA, R. SUBHASH REDDYAND B. R. GAVAI, JJ.]

Code of Criminal Procedure, 1973 – s. 144 – TemporarySuspension of Telecom Services (Public Emergency or Public Service)CRules, 2017 – Exemption from production of orders passed u/s. 144Cr. P.C. and under the suspension Rules by the Government – Claimof – Various Authorities passed orders restricting the movement andcommunication in the State of Jammu and Kashmir, however, theorders were not placed before the Court – Held: There are twoDseparate types of reasoning that mandate the production of theorders passed by the authorities – First, Art. 19 of the Constitutionmandate right to information as an important facet of the right tofreedom of speech and expression – democracy, which is swornto transparency and accountability, necessarily mandates theproduction of orders as it is right of an individual to know – TheEState has to act in responsible manner to uphold Part- III of theConstitution and not to take away these rights in an implied fashionor in Casual and Cavalier manner – Second, there is no disputethat democracy entails free flow of information – There is not onlya normative expectation under the Constitution, but also aFrequirement under natural law, that no law should be passed in acladestine manner – When there is curtailment of fundamentalright as result of any order passed or action taken by the Statewhich is not easily available, the State should take proactiveapproach in ensuring that all the relevant orders are placed beforethe Court, unless there is some specific ground of privilege orGcountervailing public interest to be balanced, which must bespecifically claimed by the State on affidavit – In the instant case,while the State initially claimed privilege, it subsequently droppedthe claim and produced certain sample orders, citing difficulty inproducing all the orders before the Court – This is not valid groundHto refuse production of orders before the Court.

Constitution of India – Art.19(1)(g) – Freedom of trade andcommerce through the medium of the internet – Protection u/Art.19(1)(g) – Held: Internet is very important tool for trade andcommerce – The globalization of the Indian economy and the rapidadvances in information and technology have opended up vastbusiness avenues and transformed India as global IT hub – Thereare certain trades which are completely dependent on the internet –Such right of trade through internet also fosters consumerismand availability of choice – Therefore, the freedom of trade andcommerce through the medium of the internet is also Constitutionallyprotected u/Art. 19(1)(g), subject to the restrictions provided u/Art.19(6).

Doctrine/ Principles – Doctrine of proportionality –Requirement of – Constitution of India – Art. 19(1)(g) – Held: Inthe first stage itself, the possible goal of such measure intended atimposing restrictions must be determined – It ought to be noted thatsuch goal must be legitimate – However, before settling on theaforesaid measure, the authorities must assess the existence of anyalternative mechanism in furtherance of the aforesaid goal – Theappropriateness of such measure depends on its implication uponthe fundamental rights and the necessity of such measure – It isundeniable from the aforesaid holding that only the least restrictivemeasure can be resorted to by the State, taking into considerationthe facts and circumstances – Lastly, since the order has seriousimplications on the fundamental rights of the affected parties, thesame should be supported by sufficient material and should beamenable to judicial review.Doctrine/ Principles – Doctrine of Proportionality –Immediate impact of restrictions upon the realization of thefundamental rights – Held: To consider the immediate impact ofrestrictions upon the realization of the fundamental rights, thedecision maker must prioritize the various factors at stake – Suchattribution of relative importance is what constitutes proportionality– It ought to be noted that decision which curtails fundamentalrights without appropriate justification will be classified asdisproportionate – The concept of proportionality requires arestriction to be tailored in accordance with the territorial extent ofthe restriction, the stage of emergency, nature of urgency, duration

Aof such restrictive measure and nature of such restriction – Thetriangulation of restriction requires the consideration ofappropriateness, necessity and the least restrictive measure beforebeing imposed.

Constitution of India – Indefinite internet shut down by theBGovernment – Validity of – Held: One of the gaps must be highlightedrelates to the usage of the word ‘temporary’ in the title of the‘Temporary Suspension of Telecom Services (Public Emergency orPublic Service) Rules, 2017 ‘– Despite the above, there is noindication of the maximum duration for which suspension ordercan be in operation – Keeping in view the requirements ofCproportionality, an order suspending the aforesaid servicesindefinitely is impermissible – The existing Suspension Rules neitherprovide for periodic review nor time limitation for an orderissued under the Suspension Rules – Till this gap is filled, the ReviewCommittee constituted u/r. 2(5) of the Suspension Rules directed toDconduct periodic review within seven working days of the previousreview, in terms of the requirements u/r. 2(6).

Words and Phrases – ‘emergency’ – The word ‘emergency’has various connotations – Everyday emergency, needs to bedistinguished from the type of emergency wherein events whichEinvolve, or might involve, serious and sometimes widespread risk ofinjury or harm to members of the public or the destruction of, orserious damage to, property – The ‘public emergency’ is required tobe of serious nature, and needs to be determined on case to casebasis.

FCode of Criminal Procedure, 1973 – s.144 – VariousAuthorities passed orders restricting movements u/s. 144 on 4.8.2019in the State of Jammu and Kashmir – Validity of – Petitionerscontended that there had to be circumstance on 4.8.2019 showingthat there would be an action which will likely create obstruction,annoyance or injury to any person or will likely cause disturbanceGof the public tranquility and Government could not have passedsuch orders in anticipation or on the basis of apprehension – Held:The power u/s. 144 Cr. P.C being remedial as well as preventive, isexercisable not only where there exists present danger, but also whenthere is an apprehension of danger – However, the dangerHcontemplated should be in the nature of an ‘emergency’ and for the

purpose of preventing obstruction and annoyance or injury to anyperson lawfully employed – While passing orders u/s.144 Cr.P.C., itis imperative to indicate the material facts necessitating passing ofsuch orders – Normally, it should be invoked and confined to aparticular area or some particular issues – In the instant case, itwas contended by the petitioners that the majority of thegeographical area of the erstwhile State of Jammu and Kashmirwas placed under orders passed u/s. 144 Cr. P.C. and the passingof these orders need to be looked at in this perspective – In response,it is the case of the respondent, that it is an issue of national securityand cross border terrorism – Although, the restrictions were removedon 27.9.2019, thereby rendering the present exercise into virtuallyacademic one, however, the non-compliance of law by the Statecannot be ignored – Hence, the authorities directed to follow theprinciples laid down by the Supreme court and upheld the rules oflaw.Code of Criminal Procedure, 1973 – Order passed u/s. 144 –Judicial review – Scope of – Held: The existence of the power ofjudicial review is undeniable – It is for the Magistrate and the Stateto make an informed judgment about the likely threat to public peaceand law and order – The State is best placed to make an assessmentof threat to public peace and tranquillity or law and order –However, the law requires them to state the material facts for invokingthis power – This will enable judicial scrutiny and verification ofwhether there are sufficient facts to justify the invocation of thispower.

Constitution of India – Freedom of Press – Restriction on –The petitioner alleged that the cumulative effect of variousrestrictions on 4.8.2019 in the State of Jammu and Kashmir, such asthe imposition of s.144 Cr. P.C. and restriction on internet andcommunication, has indirectly affected the freedom of the press inthe valley – The contention of petitioner rests on the chilling effectsalleged to be produced by the imposition of restrictions – Held:One possible test of chilling effect is comparative harm – In thisframe-work, the Court is required to see whether the impugnedrestrictions, due to their broad-based nature, have had restrictiveeffect on similarly placed individuals during the period – It is thecontention of the petitioner that she was not able to publish her

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Anewspaper from 06.08.2019 to 11.10.2019 – However, no evidencewas put forth to establish that such other individuals were alsorestricted in publishing newspapers in the area – Without suchevidence having been placed on record, it would be impossible todistinguish legitimate claim of chilling effect from mere emotiveargument for self-serving purpose – On the other hand, thereBwere other newspapers which were running during the aforesaidtime period – In view of these facts, and considering that theaforesaid petitioner has now resumed publication, it is not fit toindulge more in the issue than to state that responsible Governmentsare required to respect the freedom of the press at all times.CDoctrine/ Principles – Principle of chilling effect – discussed.Disposing of the writ petitions, the Court

HELD :PRODUCTION OF ORDERSD

1. There are two separate types of reasoning that mandatethis Court to order production of the orders passed by theauthorities in this case. First, Article 19 of the Constitution hasbeen interpreted to mandate right to information as an importantfacet of the right to freedom of speech and expression. AEdemocracy, which is sworn to transparency and accountability,necessarily mandates the production of orders as it is the right ofan individual to know. Moreover, fundamental rights itself connotea qualitative requirement wherein the State has to act in aresponsible manner to uphold Part III of the Constitution andFnot to take away these rights in an implied fashion or in casualand cavalier manner. [Para 15][847-B-C]

2. Second, there is no dispute that democracy entails freeflow of information. There is not only normative expectationunder the Constitution, but also requirement under natural law,that no law should be passed in clandestine manner. [ParaG16][847-D]

3. As general principle, on challenge being maderegarding the curtailment of fundamental rights as result of anyorder passed or action taken by the State which is not easilyavailable, the State should take proactive approach in ensuringHthat all the relevant orders are placed before the Court, unless

there is some specific ground of privilege or countervailing publicinterest to be balanced, which must be specifically claimed bythe State on affidavit. In such cases, the Court could determinewhether, in the facts and circumstances, the privilege or publicinterest claim of the State overrides the interests of the Petitioner.Such portion of the order can be redacted or such material canbe claimed as privileged, if the State justifies such redaction onthe grounds, as allowed under the law. [Para 17][847-F-G; 848-A]4. In the present case, while the State initially claimedprivilege, it subsequently dropped the claim and produced certainsample orders, citing difficulty in producing all the orders beforethis Court. In the opinion of this Court, this is not valid groundto refuse production of orders before the Court. [Para 18][848-B]

FUNDAMENTAL RIGHTS UNDER PART III ANDRESTRICTIONS THEREOF

5. The internet is also very important tool for trade andcommerce. The globalization of the Indian economy and the rapidadvances in information and technology have opened up vastbusiness avenues and transformed India as global IT hub. Thereis no doubt that there are certain trades which are completelydependent on the internet. Such right of trade through internetalso fosters consumerism and availability of choice. Therefore,the freedom of trade and commerce through the medium of theinternet is also constitutionally protected under Article 19(1)(g),subject to the restrictions provided under Article 19(6). [Para27][850-D-E]

6. It has been argued by the Petitioners that the restrictionsunder Article 19 of the Constitution cannot mean completeprohibition. In this context, the aforesaid contention cannot besustained in light of number of judgments of this Court whereinthe restriction has also been held to include complete prohibitionin appropriate cases. [Para 32][851-F]

7. The study of various case laws points to threepropositions which emerge with respect to Article 19(2) of theConstitution. (i) Restriction on free speech and expression may

Ainclude cases of prohibition. (ii) There should not be excessiveburden on free speech even if complete prohibition is imposed,and the government has to justify imposition of such prohibitionand explain as to why lesser alternatives would be inadequate.(iii) Whether restriction amounts to complete prohibition is aquestion of fact, which is required to be determined by the CourtBwith regard to the facts and circumstances of each case. [Para33][852-A-C]

8. It goes without saying that the Government is entitledto restrict the freedom of speech and expression guaranteedunder Article 19(1)(a) if the need be so, in compliance with theCrequirements under Article 19(2). It is in this context, while thenation is facing such adversity, an abrasive statement withimminent threat may be restricted, if the same impinges uponsovereignty and integrity of India. The question is one of extentrather than the existence of the power to restrict. [Para 46][856-DD]

9. The doctrine of proportionality is not foreign to the IndianConstitution, considering the use of the word ‘reasonable’ underArticle 19 of the Constitution. In catena of judgments, this Courthas held “reasonable restrictions” are indispensable for theErealisation of freedoms enshrined under Article 19, as they arewhat ensure that enjoyment of rights is not arbitrary or excessive,so as to affect public interest. [Para 53][858-C-D]

10. The requirements of the doctrine of proportionalitywhich must be followed by the authorities before passing any orderFintending on restricting fundamental rights of individuals. In thefirst stage itself, the possible goal of such measure intended atimposing restrictions must be determined. It ought to be notedthat such goal must be legitimate. However, before settling onthe aforesaid measure, the authorities must assess the existenceof any alternative mechanism in furtherance of the aforesaid goal.GThe appropriateness of such measure depends on its implicationupon the fundamental rights and the necessity of such measure.It is undeniable from the aforesaid holding that only the leastrestrictive measure can be resorted to by the State, taking intoconsideration the facts and circumstances. Lastly, since the orderH

has serious implications on the fundamental rights of the affectedparties, the same should be supported by sufficient material andshould be amenable to judicial review. [Para 70][870-E-G]

11. The degree of restriction and the scope of the same,both territorially and temporally, must stand in relation to what isactually necessary to combat an emergent situation. [Para 71][871-A]

12. To consider the immediate impact of restrictions uponthe realization of the fundamental rights, the decision maker mustprioritize the various factors at stake. Such attribution of relativeimportance is what constitutes proportionality. It ought to be notedthat decision which curtails fundamental rights withoutappropriate justification will be classified as disproportionate. Theconcept of proportionality requires restriction to be tailored inaccordance with the territorial extent of the restriction, the stageof emergency, nature of urgency, duration of such restrictivemeasure and nature of such restriction. The triangulation of arestriction requires the consideration of appropriateness,necessity and the least restrictive measure before being imposed.[Para 72][871-B-C]

13. There is ample merit in the contention of theGovernment that the internet could be used to propagateterrorism thereby challenging the sovereignty and integrity ofIndia. This Court would only observe that achievement of peaceand tranquillity within the erstwhile State of Jammu and Kashmirrequires multifaceted approach without excessively burdeningthe freedom of speech. In this regard the Government is requiredto consider various options under Article 19(2) of theConstitution, so that the brunt of exigencies is decimated in amanner which burdens freedom of speech in minimalist manner.[Para 76][871-G-H; 872-A]

INTERNET SHUTDOWN

14. The complete broad suspension of telecom services,be it the Internet or otherwise, being drastic measure, must beconsidered by the State only if ‘necessary’ and ‘unavoidable’. Infurtherance of the same, the State must assess the existence of

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Aan alternate less intrusive remedy. Having said so, it is notedthat the Temporary Suspension of Telecom Services (PublicEmergency or Public Service) Rules, 2017 have certain gaps,which are required to be considered by the legislature. [Para99][881-C]

B15. One of the gaps which must be highlighted relates tothe usage of the word “temporary” in the title of the SuspensionRules. Despite the above, there is no indication of the maximumduration for which suspension order can be in operation.Keeping in mind the requirements of proportionality expoundedin the earlier section of the judgment, this Court is of the opinionCthat an order suspending the aforesaid services indefinitely isimpermissible. In this context, it is necessary to lay down someprocedural safeguard till the aforesaid deficiency is cured by thelegislature to ensure that the exercise of power under theSuspension Rules is not disproportionate. Therefore, it is directedDthat the Review Committee constituted under Rule 2(5) of theSuspension Rules must conduct periodic review within sevenworking days of the previous review, in terms of the requirementsunder Rule 2(6). The Review Committee must therefore not onlylook into the question of whether the restrictions are still incompliance with the requirements of Section 5(2) of the TelegraphEAct, but must also look into the question of whether the ordersare still proportionate, keeping in mind the constitutionalconsequences of the same. It is clarified that looking to the factthat the restrictions contemplated under the Suspension Rulesare temporary in nature, the same must not be allowed to extendFbeyond that time period which is necessary. [Para 100][881-D-G]

RESTRICTIONS UNDER SECTION 144 OF CRPC

16. The safeguards in Section 144, Cr.P.C. are discussedbelow and deserve close scrutiny.

G(a) Prior Inquiry before issuing Order: Before issuing anorder under Section 144, Cr.P.C., the District Magistrate (or anyauthorised Magistrate) must be of the opinion that:

(i)There is sufficient ground for proceeding under thisprovision i.e. the order is likely to prevent obstruction,H

annoyance or injury to any person lawfully employedor danger to human life, health or safety or disturbanceto the public tranquillity; and

(ii) Immediate prevention or speedy remedy is desirable.

The phrase “opinion” suggests that it must be arrived atafter careful inquiry by the Magistrate about the need to exercisethe extraordinary power conferred under this provision.

(b) Content of the Order: Once Magistrate arrives at anopinion, he may issue written order either prohibiting personfrom doing something or mandatory order requiring personto take action with respect to property in his possession or underhis management. But the order cannot be blanket order. It mustset out the “material facts” of the case. The “material facts” mustindicate the reasons which weighed with the Magistrate to issuean order under Section 144, Cr.P.C.

(c) Communication of the Order: The Order must be servedin the manner provided under Section 134, Cr.P.C., i.e., servedon the person against whom it is made. If such course of actionis not practicable, it must be notified by proclamation andpublication so as to convey the information to persons affectedby the order. Only in case of an emergency or where thecircumstances are such that notice cannot be served on such aperson, can the order be passed ex parte.

(d) Duration of the Order: As this power can only beexercised in urgent cases, the statute has incorporated temporalrestrictions—the order cannot be in force for more than twomonths. However, the State Government can extend an orderissued under Section 144, Cr.P.C. by Magistrate for furtherperiod up to six months if the State Government considers itnecessary for preventing danger to human life, health or safetyor preventing riot.

Although, two-month period outer limit for the Magistrate,and six-month limit for the State Government, has been providedunder Section 144, Cr.P.C. but the concerned Magistrate andthe State Government must take all steps to ensure that therestrictions are imposed for limited duration.

A(e) Act Judicially while Rescinding or Modification of the Order: The Magistrate can rescind or alter any order made by him onhis own or on an application by any aggrieved person. Similarly,the State Government may also on its own motion rescind or alterany order passed by it, extending an order passed under Section144, Cr.P.C. While considering any application for modificationBor alteration, the Magistrate or the State Government is requiredto act judicially, i.e., give personal hearing and give reasons if itrejects the application. Care should be taken to dispose of suchapplications expeditiously. [Para 108][884-G-H; 885-B-H; 886-A-C]

17. The orders passed under Section 144, Cr.P.C. havedirect consequences upon the fundamental rights of the public ingeneral. Such power, if used in casual and cavalier manner,would result in severe illegality. This power should be usedresponsibly, only as measure to preserve law and order. TheDorder is open to judicial review, so that any person aggrieved bysuch an action can always approach the appropriate forum andchallenge the same. But, the aforesaid means of judicial reviewwill stand crippled if the order itself is unreasoned or un-notified.This Court, in the case of Babulal Parate, also stressed upon therequirement of having the order in writing, wherein it is clearlyEindicated that opinion formed by the Magistrate was based uponthe material facts of the case. [Para 129][896-H; 897-A-B]18. While passing orders under Section 144, Cr.P.C., it isimperative to indicate the material facts necessitating passing ofsuch orders. Normally, it should be invoked and confined to aFparticular area or some particular issues. However, in the presentcase, it is contended by the Petitioners that the majority of thegeographical area of the erstwhile State of Jammu and Kashmirwas placed under orders passed under Section 144, Cr.P.C. andthe passing of these orders need to be looked at in thisGperspective. In response, it is the case of the Respondent,although it has not been stated in clear terms, that it is an issueof national security and cross border terrorism. It is cautionedagainst the excessive utility of the proportionality doctrine in thematters of national security, sovereignty and integrity. [Para130][897-E-G]H

19. The existence of the power of judicial review isundeniable. The opinion that it is for the Magistrate and the Stateto make an informed judgement about the likely threat to publicpeace and law and order. The State is best placed to make anassessment of threat to public peace and tranquillity or law andorder. However, the law requires them to state the material factsfor invoking this power. This will enable judicial scrutiny and averification of whether there are sufficient facts to justify theinvocation of this power. [Para 132][899-B-C]

20. In situation where fundamental rights of the citizensare being curtailed, the same cannot be done through an arbitraryexercise 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 situationof urgency, the authority is required to satisfy itself of such materialto base its opinion on for the immediate imposition of restrictionsor measures which are preventive/remedial. However, if theauthority is to consider imposition of restrictions over largerterritorial area or for longer duration, the threshold requirementis relatively higher. [Para 133][899-D-E]

21. An order passed under Section 144, Cr.P.C. should beindicative of proper application of mind, which should be basedon the material facts and the remedy directed. Proper reasoninglinks the application of mind of the officer concerned, to thecontroversy involved and the conclusion reached. Orders passedmechanically or in cryptic manner cannot be said to be orderspassed in accordance with law. [Para 134][899-F]

22. Although the restrictions have been allegedly removedon 27.09.2019, thereby rendering the present exercise into avirtually academic one, this Court cannot ignore non-complianceof law by the State. This case is not just about the past or whathas happened in the erstwhile State of Jammu and Kashmir, butalso about the future, where this Court has to caution theGovernment. Hence, the authorities directed to follow the

Aprinciples laid down by this Court and uphold the rule of law.[Para 138][900-F]

23. The legal position on Section 144, Cr.P.C is summarisedas follows:

(i) The power under Section 144, Cr.P.C., being remedialBas well as preventive, is exercisable not only where there existspresent 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 andannoyance or injury to any person lawfully employed.

(ii) The power under Section 144, Cr.P.C cannot be used tosuppress legitimate expression of opinion or grievance orexercise of any democratic rights.

(iii) An order passed under Section 144, Cr.P.C. should statethe material facts to enable judicial review of the same. The powerDshould be exercised in bona fide and reasonable manner, andthe same should be passed by relying on the material facts,indicative of application of mind. This will enable judicial scrutinyof the aforesaid order.

(iv) While exercising the power under Section 144, Cr.P.C.Ethe Magistrate is duty bound to balance the rights and restrictionsbased on the principles of proportionality and thereafter applythe least intrusive measure. [Para 140][901-B-F]

FREEDOM OF THE PRESS

24. There is no doubt that the freedom of the press is aFvaluable and sacred right enshrined under Article 19(1)(a) of theConstitution. This right is required in any modern democracywithout which there cannot be transfer of information or requisitediscussion for democratic society. Squarely however, thecontention of the Petitioner rests on the chilling effects allegedGto be produced by the imposition of restrictions. [Para 146][904-C]

25. The principle of chilling effect was utilized initially in alimited context, that person could be restricted from exercisinghis protected right due to the ambiguous nature of an overbroad

statute. In this regard, the chilling effect was restricted to theanalysis of the First Amendment right. The work of FrederickSchauer provides detailed analysis in his seminal work on theFirst Amendment. This analysis was replicated in the context ofprivacy and internet usage in regulatory set up by Daniel J.Solove. These panopticon concerns have been accepted in thecase of K.S. Puttaswamy (Privacy-9J.). [Para 148][904-F-G]

26. The widening of the ‘chilling effect doctrine’ has alwaysbeen viewed with judicial scepticism. At this juncture, one maynote the decision in Laird v. Tantum, 408 U.S. 1 (1972), whereinthe respondent brought an action against the authorities to injunctthem from conducting surveillance of lawful and peaceful civilianpolitical activity, based on the chilling effect doctrine. The UnitedStates Supreme Court, in its majority decision, dismissed the pleaof the respondent on the ground of lack of evidence to establishsuch claim. The Court observed that:‘‘Allegations of asubjective “chill” are not an adequate substitute for claim ofspecific present objective harm or threat of specific future harm.”Therefore, to say that the aforesaid restrictions wereunconstitutional because it has chilling effect on the freedom ofpress generally is to say virtually nothing at all or is sayingsomething that is purely speculative, unless evidence is broughtbefore the Court to enable it to give clear finding, which hasnot been placed on record in the present case. [Para 150][905-D-G]

27. One possible test of chilling effect is comparative harm.In this frame-work, the Court is required to see whether theimpugned restrictions, due to their broad-based nature, have hada restrictive effect on similarly placed individuals during theperiod. It is the contention of the Petitioner that she was not ableto publish her newspaper from 06-08-2019 to 11-10-2019.However, no evidence was put forth to establish that such otherindividuals were also restricted in publishing newspapers in thearea. Without such evidence having been placed on record, itwould be impossible to distinguish legitimate claim of chillingeffect from mere emotive argument for self-serving purpose.[Para 151][905-H; 906-A-B]

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A28. In this view, the following directions are issued:

a. The Respondent State/competent authorities are directedto publish all orders in force and any future orders under Section144, Cr.P.C and for suspension of telecom services, includinginternet, to enable the affected persons to challenge it beforeBthe High Court or appropriate forum.

b. This Court declares that the freedom of speech andexpression and the freedom to practice any profession or carryon any trade, business or occupation over the medium of internetenjoys constitutional protection under Article 19(1)(a) and ArticleC19(1)(g). The restriction upon such fundamental rights should bein consonance with the mandate under Article 19 (2) and (6) ofthe Constitution, inclusive of the test of proportionality.

c. An order suspending internet services indefinitely isimpermissible under the Temporary Suspension of TelecomDServices (Public Emergency or Public Service) Rules, 2017.Suspension can be utilized for temporary duration only.

d. Any order suspending internet issued under theSuspension Rules, must adhere to the principle of proportionalityand must not extend beyond necessary duration.

Ee. Any order suspending internet under the SuspensionRules is subject to judicial review based on the parameters setout herein.

f. The existing Suspension Rules neither provide for aperiodic review nor time limitation for an order issued underFthe Suspension Rules. Till this gap is filled, the Review Committeeconstituted under Rule 2(5) of the Suspension Rules directed toconduct periodic review within seven working days of theprevious review, in terms of the requirements under Rule 2(6).

g. The respondent State/competent authorities directed toGreview 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 necessity topass fresh orders, the law laid down herein must be followed.

i. In any case, the State/concerned authorities are directedto consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essentialservices, in those regions, wherein the internet services are notlikely to be restored immediately. [Para 152][906-D-H; 907-A-E]

Ram Jethmalani v. Union of India, (2011) 8 SCC 1 :[2011] 8 SCR 725; K.S. Puttaswamy (Retired) v. Unionof India, (2019) 1 SCC 1; CPIO v. Subhash ChandraAggarwal, (2019) SCC OnLine SC 145; ChintamanRao v. State of Madhya Pradesh, AIR 1951 SC 118 :[1950] SCR 759; State of Madras v. V.G. Row, AIR 1952SC 196 : [1952] SCR 597; Mohammed Faruk v. Stateof Madhya Pradesh, (1969) 1 SCC 853 : [1970] 1 SCR156; Om Kumar v. Union of India, (2001) 2 SCC 386 :[2000] 4 Suppl. SCR 693; State of Bihar v. Kamla KantMisra, (1969) 3 SCC 337 : [1970] 3 SCR 181;Bishambhar Dayal Chandra Mohan v. State of UttarPradesh, (1982) 1 SCC 39 : [1982] 1 SCR 1137;Modern Dental College & Research Centre v. State ofMadhya Pradesh, (2016) 7 SCC 353; R. v. Oakes,[1986] 1 SCR 103 (Can) SC; K. S. Puttaswamy v. Unionof India, (2017) 10 SCC 1 : [2017] 10 SCR 569; HukamChand Shyam Lal v. Union of India, (1976) 2 SCC 128: [1976] 2 SCR 1060; People’s Union for Civil Liberties(PUCL) v. Union of India, (1997) 1 SCC 301 : [1996]10 Suppl. SCR 321; B.K. Srinivasan v. State ofKarnataka, (1987) 1 SCC 658 : [1987] 1 SCR 1054;Madhu Limaye v. Sub-Divisional Magistrate,Monghgyr, (1970) 3 SCC 746 : [1971] 2 SCR 711;Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC226 : [1978] 2 SCR 419; Gulam Abbas v. State of UttarPradesh, (1982) 1 SCC 71 : [1982] 1 SCR 1077;Acharya Jagdishwaranand Avadhuta v. Commr. ofPolice, Calcutta, (1983) 4 SCC 522 : [1984] 1 SCR447; Babulal Parate v. State of Bombay, AIR 1960 SC51 : [1960] SCR 605; Ram Manohar Lohia v. State ofBihar, AIR 1966 SC 740 : [1966] SCR 709; Ramlila

Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR971; State of Karnataka v. Dr. Praveen Bhai Thogadia,(2004) 4 SCC 684 : [2004] 3 SCR 652 – relied on.

Secretary, Ministry of Information & BroadcastingGovernment of India v. Cricket Association of Bengal,(1995) 2 SCC 161 : [1995] 1 SCR 1036; Shreya Singhalv. Union of India, (2015) 5 SCC 1 : [2015] 5 SCR 963;Indian Express v. Union of India, (1985) 1 SCC 641 :[1985] 2 SCR 287; Odyssey Communications Pvt. Ltd.v. Lokvidayan Sanghatana, (1988) 3 SCC 410 : [1988]1 Suppl. SCR 486; Madhya Bharat Cotton AssociationLtd. v. Union of India, AIR 1954 SC 634; NarendraKumar v. Union of India, [1960] 2 SCR 375; State ofMaharashtra v. Himmatbhai Narbheram Rao, [1969] 2SCR 392; Sushila Saw Mill v. State of Orissa, (1995) 5SCC 615 : [1995] 2 Suppl. SCR 426; Pratap Pharma(Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 : [1997]3 SCR 492; Dharam Dutt v. Union of India, (2004) 1SCC 712 : [2003] 6 Suppl. SCR 151; State of Gujaratv. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC534 : [2005] 4 Suppl. SCR 582; Minerva Mills Ltd. v.Union of India, (1980) 2 SCC 591 : [1981] 1 SCR 206;Sanjeev Coke Manufacturing Company v. M/s BharatCoking Coal Ltd., (1983) 1 SCC 147 : [1983] 1 SCR1000; Maneka Gandhi v. Union of India, (1978) 1 SCC248 : [1978] 2 SCR 621; State of Bihar v. Kamla KantMisra, (1969) 3 SCC 337 : [1970] 3 SCR 181;Channing Arnold v. The Emperor, (1914) 16 Bom LR544; Bennett Coleman v. Union of India, (1972) 2 SCC788 : [1973] 2 SCR 757; Sakal Papers (P) Ltd. v. Unionof India, [1962] 3 SCR 842; A.K Gopalan v. State ofMadras, AIR 1950 SC 27 : [1950] SCR 88; RustomCavasjee Cooper v. Union of India, (1970) 1 SCC 248: [1970] 3 SCR 530; National Investigation Agency v.Zahoor Ahmad Shah Watali, (2019) 5 SCC 1– referredto.

Ex parte Vallandigham, 28 F. Cas. 874 (1863)];Abraham v. United States, 250 U.S. 616 (1919); Dennisv. United States, 341 US 494 (1951); Brandenburg v.Ohio, 395 US 444 (1969); R v. Goldsmith, [1983] 1 WLR151, 155; Kwok Wing Hang and Ors. v. Chief Executivein Council, [2019] HKCFI 2820; Weiman v. Updgraff,344 U.S. 183; Laird v. Tantum, 408 U.S. 1 (1972);Clapper v. Amnesty Int’l, USA, 568 U.S. 113 (2013)];Public Committee Against Torture in Israel v. Israel, 38I.L.M. 1471 (1999) – referred to.

Lon L. Fuller, Positivism and Fidelity to Law: Reply toProfessor Hart, The Harvard Law Review, 71(4), 630,651 [February, 1958]; Gregory S. McNeal, CyberEmbargo: Countering the Internet Jihad, 39 Case W.Res. J. Int’l L. 789 (2007); Kai Möller, Constructingthe Proportionality Test: An Emerging GlobalConversation, Reasoning Rights Comparative JudicialEngagement (Hart Publishing, 2014); Robert Alexy, ATheory of Constitutional Rights (Oxford, OxfordUniversity Press, (2002) 47 – referred to.

Case Law Reference

830SUPREME COURT REPORTS

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1031 of 2019.

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]

With

Writ Petition (C) No. 1164 of 2019.

K.K. Venugopal, AG, Tushar Mehta, SG, K.M. Nataraj, VikramjitBanerjee, ASGs, Kapil Sibal, Huzefa Ahmadi, Dushyant Dave,Ms. Meenakshi Arora, Sr. Advs., Ms. Vrinda Grover, Ms. SumitaHazarika, Nizam Pasha, Shadan Farasat, Ms. Jahnavi Sindhu, Ms. ShrutiNarayan, Siddharth, Bhakat Gupta, Ms. Astha Sharma, Apar Gupta, AmjidMaqbool, Ms. Vrinda Bhandari, Abhishek Manchanda, Ms. Kajal Dalal,Ms. Devdutta Mukhopadhyay, Ms. Deepali Dwivedi, Soayib Quarashi,Ms. Rashmi Singh, Dhanajay Sud, Ms. Rahilla & Yasmin, Fuzail AhmadAyyubi, Ankur Talwar, Rajat Nair, Kanu Agrawal, Ayush Anand,Ms. Anindita Barman, Shantnu Sharma, Bhuwan Kapoor, B. V. BalaramDas, Sudhakar Kulwant, Ms. Shashi Juneja, Satyajeet Kumar, DebasisMisra, Kundan Kumar Mishra, R.C. Paul Kanakraj, Dr. Sanatan RayChoudhari, Jagdev. Ms. Pareena Swarup, M.S. Vinayak, Dr. SamsuddinKhan Choudhary, Ms. Meera Bhatia, Rajnish Kumar, Ms. Alpana Sharma,Manav, Parvez Bashista, Dr. Sunil Kumar, Pradeep Kumar Koushik,R. Sharath, Shashindra Tripathi, Narender Kumar Sharma, Jay PrakashSomani, Ms. Harvinder Chowdhury, Dr. Nishesh Sharma, Sandip Gorsi,Sahitya Singh Srivastava, Ms. Ekta Kalra, Anil Kumar, Anshuman Ashok,Advs. for the appearing parties.

AJUDGMENT

TABLE OF CONTENTS

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 directthe other way-

in short, the period was so far like the present period, thatsome of its noisiest authorities insisted on its being received,for good or for evil, in the superlative degree of comparisononly.”

-Charles Dickens in Tale of Two Cities

1. Although cherished in our heart as “Paradise on Earth”, thehistory of this beautiful land is etched with violence and militancy. Whilethe mountains of Himalayas spell tranquillity, yet blood is shed everyHday. In this land of inherent contradictions, these petitions add to the list,

wherein two sides have shown two different pictures which arediametrically opposite and factually irreconcilable.In this context, thisCourt’s job is compounded by the magnitude of the task before it. Itgoes without saying that this Court will not delve into the political proprietyof the decision taken herein, which is best left for democratic forces toact on. Our limited scope is to strike balance between the liberty andsecurity concerns so that the right to life is secured and enjoyed in thebest possible manner.

2. Liberty and security have always been at loggerheads. Thequestion before us, simply put, is what do we need more, liberty orsecurity? Although the choice is seemingly challenging, we need to clearourselves from the platitude of rhetoric and provide meaningful answerso that every citizen has adequate security and sufficient liberty. Thependulum of preference should not swing in either extreme direction sothat one preference compromises the other. It is not our forte to answerwhether 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 therights and liberty to the highest extent in given situation whileensuringsecurity at the same time.3. The genesis of the issue starts with the Security Advisory issuedby the Civil Secretariat, Home Department, Government of Jammu andKashmir, advising the tourists and the Amarnath Yatris to curtail theirstay and make arrangements for their return in the interest of safety andsecurity. Subsequently, educational institutions and offices were orderedto 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 thePresident, applying all provisions of the Constitution of India to the Stateof Jammu and Kashmir, and modifying Article 367 (Interpretation) in itsapplication to the State of Jammu and Kashmir. In light of the prevailingcircumstances, on the same day, the District Magistrates, apprehendingbreach of peace and tranquillity, imposed restrictions on movement andpublic 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 of2019 claims that the movement of journalists was severely restrictedand on 05.08.2019, the Kashmir Times Srinagar Edition could not bedistributed. The Petitioner has submitted that since 06.08.2019, she has

Abeen unable to publish the Srinagar edition of Kashmir Times pursuantto the aforesaid restrictions.

5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasinand Mr. Ghulam Nabi Azad) approached this Court under Article 32 ofthe Constitution seeking issuance of an appropriate writ for setting asideBor quashing any and all order(s), notification(s), direction(s) and/orcircular(s) issued by the Respondents under which any/all modes ofcommunication including internet, mobile and fixed line telecommunicationservices have been shutdown or suspended or in anyway madeinaccessible or unavailable in any locality. Further, the Petitioners soughtthe issuance of an appropriate writ or direction directing Respondents toCimmediately restore all modes of communication including mobile, internetand landline services throughout Jammu and Kashmir in order to providean enabling environment for the media to practice its profession.Moreover, the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded topass any appropriate writ or direction directing the Respondents to takeDnecessary steps for ensuring free and safe movement of reporters andjournalists and other media personnel. Lastly, she also pleaded for theframing of guidelines ensuring that the rights and means of mediapersonnel to report and publish news is not unreasonably curtailed.

6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No.E1164 of 2019), alleges that he was stopped from travelling to hisconstituency in Jammu and Kashmir. In this context, he alleges that dueto the aforesaid restrictions, he is not able to communicate with thepeople of his constituency.

7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad),Fwas listed before Co-ordinate Bench of this Court on 16.09.2019, thefollowing order was passed:

“Issue notice.

We permit the petitioner to go to Srinagar and visit the followingdistricts, subject to restrictions, if any:-

(i) Srinagar, (ii) Anantnag, (iii) Baramulla and (iv) Jammu.

The petitioner has undertaken before the Court on his own volitionthat he will not indulge in any political rally or political activityduring his visit. The visit will solely be concerned with making anassessment of the impact of the present situation on the life of theHdaily 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 twoweeks 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 of2019 (five-Judge Bench) and was later de-tagged. On 16.09.2019, aCo-ordinate Bench of this Court ordered the following:

“The State of Jammu & Kashmir, keeping in mind the nationalinterest and internal security, shall make all endeavours to ensurethat normal life is restored in Kashmir; people have access tohealthcare facilities and schools, colleges and other educationalinstitutions and public transport functions and operates normally.All forms of communication, subject to overriding considerationof national security, shall be normalized, if required on selective”basis, particularly for healthcare facilities.

When the said writ petition was listed before this Bench on01.10.2019, in light of expediency, this Bench directed that no furtherintervention applications shall be entertained. However, liberty wasgranted to file additional documents in support of applications forintervention. When the matter came up for hearing on the next date on16.10.2019, the following order was passed:

“When these matters came up for hearing today, learned SolicitorGeneral appearing for the Union of India made submission thatafter filing the counter affidavit in these matters, certain furtherdevelopments have taken place and some of the restrictionsimposed have been relaxed, particularly with reference to mobileconnectivity as well as the landlines services etc. and, therefore,he wants to file another additional affidavit indicating the stepstaken by the Government about relaxation of some restrictions.He also made request to accommodate him for week only.During the course of hearing, we are informed by the learned

Senior counsel appearing for the petitioners that the orders whichare issued by the authorities relating to the restrictions imposedhave not been provided to them so far.

When we asked the learned Solicitor General about the non- supplyof orders issued by the authorities relating to the restrictions

Aimposed, particularly with respect to the cell phone services aswell as Section 144 proceedings, he claims privilege over thoseorders. He, however, states that those orders can be producedbefore this Court.

However, if for any reason, learned Solicitor General does notBwant to give copy of those orders to the petitioners, we requesthim to file an affidavit indicating the reasons for claiming suchprivilege.”

On 24.10.2019, after the aforesaid orders were placed on recordand pleadings were complete, the matter was listed for final disposal onC05.11.2019. Taking into account the concerns expressed by the parties,we extensively heard the counsel for both sides, as well as all theIntervenors 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 allthe submissions made and documents placed before us.

B. CONTENTIONSDMs. Vrinda Grover, Counsel for the Petitioner in W.P. (C)No. 1031 of 2019

•It was contended that the petitioner, being executive editor ofone of the major newspapers, was not able to function postE05.08.2019, due to various restrictions imposed on the press.

•Print media came to grinding halt due to non-availability ofinternet services, which in her view, is absolutely essential forthe modern press.

•Curtailment of the internet, is restriction on the right to freeFspeech, should be tested on the basis of reasonableness andproportionality.

•The procedure that is to be followed for restricting Internetservices is provided under the Temporary Suspension ofTelecom Services (Public Emergency or Public Service) Rules,G2017 [hereinafter “Suspension Rules”], which were notifiedunder the Telegraph Act. The Suspension Rules indicate thatthe restriction imposed was contemplated to be of temporarynature.

•The orders passed under the Suspension Rules placed on recordby the State of Jammu and Kashmir, regarding the restrictionspertaining to the Internet and phones (either mobile or telephonewere ex facie perverse and suffered from non-application ofmind.

•Learned counsel submitted that the orders were not incompliance with the procedure prescribed under the SuspensionRules. Further, the orders did not provide any reasoning as tothe necessity of the restrictions, as is required under theSuspension Rules.

•Lastly, the learned counsel contended that the orders are basedon an apprehension of likelihood that there would be danger toa law and order situation. Public order is not the same as lawand order, and the situation at the time when the orders werepassed did not warrant the passing of the orders resulting inrestrictions.

Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P.(C) No. 1164 of 2019

•Learned senior counsel submitted that the orders of theauthorities had to be produced before the Court, and cannot bethe subject of privilege, as claimed by the State.

•It was submitted that the conduct of the State, in producingdocuments and status reports during argumentation, wasimproper, as it did not allow the Petitioners with sufficientopportunity to rebut the same.

•Learned senior counsel submitted that the Union of India candeclare an emergency only in certain limited situations. Neitherany ‘internal disturbance’ nor any ‘external aggression’ hasbeen shown in the present case for the imposition of restrictionswhich are akin to the declaration of Emergency.

•With respect to the orders restricting movement passed underSection 144, Cr.P.C., the learned senior counsel contended thatsuch an order is made to deal with ‘law and order’ situation,but the orders do not indicate any existing law and order issue,or apprehension thereof.

A•Learned senior counsel pointed out that the order of theMagistrate under Section 144, Cr.P.C. cannot be passed to thepublic generally, and must be specifically against the people orthe group which is apprehended to disturb the peace. It isnecessary for the State to identify the persons causing theproblem, and an entire State cannot be brought to halt.BMoreover, he has contended that there was no application ofmind before passing those orders.

•While submitting that it could be assumed that there was somematerial available for the purpose of passing the orders underSection 144, Cr.P.C., the question which then arises is how theCState balances the rights of individuals.

•The learned senior counsel, with respect to the communications’restrictions, submitted that the State had not indicated as to thenecessity to block landline services. He further submitted thatthe communications/Internet restrictions which were imposedDunder the Indian Telegraph Act, 1885 [hereinafter “TelegraphAct”] needs to follow the provisions of Section 5 of theTelegraph Act, in line with Article 19 of the Constitution. Whilethere can be some restrictions, there can be no blanket orders,as it would amount to complete ban. Instead, distinctionEshould be drawn while imposing restrictions on social media/mass communication and the general internet. The leastrestrictive option must be put in place, and the State shouldhave taken preventive or protective measures. Ultimately, theState needs to balance the safety of the people with their lawfulexercise of their fundamental rights.F•On internet restrictions, the learned senior counsel submittedthat such restrictions not only impact the right to free speechof individuals but also impinges on their right to trade. Therefore,a less restrictive measure, such as restricting only social mediawebsites like Facebook and Whatsapp, should and could haveGbeen passed, as has been donein India while prohibiting humantrafficking and child pornography websites. The learned seniorcounsel pointed to orders passed in Bihar, and in Jammu andKashmir in 2017, restricting only social media websites, andsubmitted that the same could have been followed in this caseas well.H

•Indicating that the State can impose restrictions, the learnedAsenior counsel focussed on the question of the “least restrictivemeasure” that can be passed. The learned senior counselsubmitted that while imposing restrictions, the rights ofindividuals need to be balanced against the duty of the State toensure security. The State must ensure that measures are inBplace that allows people to continue with their life, such aspublic 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, andsubmitted that the restrictions on the freedom of speech shouldbe reasonable as mandated under Article 19 of the Constitution.These restrictions need to be tested on the anvil of the test ofproportionality.

•Learned senior counsel submitted that Section 144, Cr.P.C.orders should be based on some objective material and notmerely on conjectures.

Mr. Dushyant Dave, Senior Counsel for the Intervenor inI.A. No. 139555 in W.P. (C) No. 1031 of 2019

•Learned senior counsel attempted to highlight that the issue ofbalancing the measures necessary for ensuring national securityor curbing terrorism, with the rights of the citizens, is anendeavour that is not unique, and has been undertaken by Courtsin various jurisdictions. Learned senior counsel relied on thejudgment of the Supreme Court of Israel concerning theLegality of the General Security Service’s InterrogationMethods in Public Committee Against Torture in Israel v.Israel, 38 I.L.M. 1471 (1999) relating to the question ofwhether torture during interrogation of an alleged terrorist waspermissible. In that case, the Israeli Supreme Court held thatsuch acts were unconstitutional, and could not be justified inlight of the freedoms and liberties afforded to the citizens ofIsrael.

A•Learned senior counsel drew parallels between the situationfaced by the Israeli Supreme Court in the abovementioned case,and that before this Court, wherein, according to the learnedsenior counsel, the State is attempting to justify the restrictionsdue to the circumstances prevailing in the State of Jammu andKashmir. The learned senior counsel submitted that such aBjustification merits rejection as it would amount to granting toomuch power to the State to impose broad restrictions onfundamental rights in varied situations. It would amount toindividual liberty being subsumed by social control.

•The learned senior counsel emphasized on the seriousness ofCthe present matter, stating that such restrictions on thefundamental rights is the reason for the placement of Article32 of the Constitution in Part III, as fundamental right whichallows for the enforcement of the other fundamental rights.He referred to the Constituent Assembly debates to highlightDthe import of Article 32, as contemplated by the Members ofthe Constituent Assembly.

•The learned senior counsel also placed before this Court theGovernment of India National Telecom Policy, 2012, andsubmitted that the wide restrictions imposed by the State areEin contravention of the aforementioned policy. He submittedthat the freedom of speech and expression is meant to allowpeople to discuss the burning topic of the day, including theabrogation of Article 370 of the Constitution.

•Lastly, the learned senior counsel emphasized that theFrestrictions that were imposed are meant to be temporary innature, have lasted for more than 100 days, which fact shouldbe taken into account by this Court while deciding the matter.

Ms. Meenakshi Arora, Senior Counsel for the Intervenorin I.A. No. 140276 in W.P. (C) No. 1031 of 2019

G•Learned senior counsel submitted that Articles 19 and 21 ofthe Constitution require that any action of the State mustdemonstrate five essential features: (a) backing of ‘law’, (b)legitimacy of purpose, (c) rational connection of the act andobject, (d) necessity of the action, and (e) when the abovefour are established, then the test of proportionality.H

•At the outset, learned senior counsel submitted that it isnecessary to test the validity of the orders by reference to thefacts and circumstances prevailing on the date of passing ofthe said orders, i.e., 04.08.2019.

•Learned senior counsel submitted that the orders that have notbeen published cannot be accorded the force of law. Thenecessity of publication of law is part of the rule of naturaljustice. Not only must the orders be published, it is alsonecessary that these orders be made available and accessibleto the public. The State cannot refuse to produce the ordersbefore the Court or claim any privilege.

•The learned senior counsel further submitted that,notwithstanding the expediency of the situation, the necessityof measure must be shown by the State. The people have aright to speak their view, whether good, bad or ugly, and theState must prove that it was necessary to restrict the same.

•On the point of proportionality, the learned senior counselsubmitted that the test of proportionality was upheld by thisCourt in the case of K. S. Puttaswamy v. Union of India,(2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy-9J.)”) and therefore the proportionality of measure must bedetermined while looking at the restrictions being imposed bythe State on the fundamental rights of citizens. The learnedsenior counsel pointed out that it is not just the legal and physicalrestrictions that must be looked at, but also the fear that thesesorts 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

•Although this Writ Petition was withdrawn during arguments,the learned senior counsel wished to make certain submissionsregarding the issue at hand. The learned senior counselsubmitted on behalf of the Petitioner that although he and hisfamily were law abiding citizens, yet they are suffering theeffects of the restrictions. Citing the House of Lords judgmentof Liversidge v. Anderson, (1941) 3 All ER 338 the learnedsenior counsel submitted that it was the dissent by Lord Atkin,

842SUPREME COURT REPORTS

[2020] 1 S.C.R.

Aupholding the fundamental rights of the citizens of the UnitedKingdom, which is now the law of the land.

Mr. K. K. Venugopal, Learned Attorney General for theUnion of India

•The learned Attorney General supported the submissions madeBby the Solicitor General. He submitted that the background ofterrorism in the State of Jammu and Kashmir needs to be takeninto account. Relying on National Investigation Agency v.Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, the learnedAttorney General submitted that this Court while deciding theCaforementioned case, has taken cognizance of the problem ofterrorism in the State before.

•According to the learned Attorney General, keeping in mindthe facts regarding cross border terrorism and internal militancy,it would have been foolish to have not taken any preventiveDmeasures in the circumstances. The necessity of the ordersunder Section 144, Cr.P.C. are apparent from the backgroundfacts and circumstances, when there can be huge violence ifthe Government did not take these kinds of measures. In fact,similar steps were taken earlier by the Government in 2016when terrorist was killed in the State.EMr. Tushar Mehta, Solicitor General for the State of Jammuand Kashmir

•The learned Solicitor General submitted that the first andforemost duty of the State is to ensure security and protect theFcitizens- their lives, limbs and property. He further submittedthat the facts relied on by the Petitioners and the Intervenorswere incorrect, as they did not have the correct informationabout the factual position on the ground in the State of Jammuand Kashmir.

•The learned Solicitor General submitted that the historicalGbackground of the State of Jammu and Kashmir is necessaryto be looked at to understand the measures taken by the State.The State has been victim of both physical and digital crossborder terrorism.

•The abrogation of Article 370 of the Constitution on 05.08.2019Hwas historic step, which resulted not in the taking away of

the rights of the citizens of Jammu and Kashmir, but confermentof rights upon them which they never had. Now, with theabrogation, 106 people friendly laws have become applicableto the State of Jammu and Kashmir.

•The learned Solicitor General submitted that the Petitionerswere incorrect to state that public movement was restricted.In fact, individual movement had never been restricted.Additionally, while schools were closed initially, they have nowbeen reopened. Depending on the facts, circumstances andrequirements of an area, restrictions were put in place whichare now being relaxed gradually.

•On the orders passed by the Magistrates under Section 144,Cr.P.C., in their respective jurisdictional areas, the learnedSolicitor General submitted that they were best placed to knowthe situation on the ground, and then took their respectivedecisions accordingly. Currently, there is nearly hundred percentrelaxation of restrictions. Restrictions were being relaxed onthe basis of the threat perception. Restrictions were neverimposed in the Ladakh region. This fact shows that there wasapplication of mind while passing the orders by the officers onthe ground, and that there was no general clampdown, as isbeing suggested by the Petitioners.

•Further, the learned Solicitor General pointed to various figuresto indicate that people were leading their ordinary lives in theState. He submitted that all newspapers, television and radiochannels are functioning, including from Srinagar, where thePetitioner in W.P. (C) No. 1031 of 2019 is situated. The learnedSolicitor General further indicated that the Government hadtaken certain measures to ensure that essential facilities wouldbe available to the populace.

•The learned Solicitor General submitted that orders passed underSection 144, Cr.P.C. can be preventive in nature, in order toprevent danger to public safety. The Magistrate can pass theorder even on the basis of personal knowledge, and the sameis supposed to be speedy mechanism. The orders passedmust be considered keeping in mind the history and thebackground of the State.

A•Relying on Babulal Parate v. State of Bombay, AIR 1960SC 51, and Madhu Limaye v. Sub-Divisional Magistrate,Monghgyr, (1970) 3 SCC 746, the learned Solicitor Generalsubmitted that the situation in the State of Jammu and Kashmirwas such that the orders could be justified in view ofmaintenance of the “security of the State”. Regarding theBPetitioners’ submission that the restrictions could have beenimposed on specific individuals, the learned Solicitor Generalsubmitted that it was impossible to segregate, and control, thetroublemakers from the ordinary citizens.

•The learned Solicitor General submitted that there were enoughCfacts in the knowledge of the Magistrate to pass the ordersunder Section 144, Cr.P.C. There was sufficient speculationon the ground to suggest that there might be move to abrogateArticle 370 of the Constitution, and they were aware of thesituation on the ground. Provocative speeches and messagesDwere being transmitted. This information is all available in thepublic domain.

•It was further submitted that the Court does not sit in appeal ofthe decision to impose restrictions under Section 144, Cr.P.C.and has limited jurisdiction to interfere, particularly when thereEare no allegations of mala fide made against the officers andwhen the question involved is of national security. The level ofrestriction required is best left to the officers who are on theground with the requisite information and knowledge, and thesame is not to be replaced by the opinion of the Courts.

F•With respect to the communications and internet shutdown,the learned Solicitor General submitted that internet was neverrestricted in the Jammu and Ladakh regions. Further, hesubmitted that social media, which allowed people to sendmessages and communicate with number of people at thesame time, could be used as means to incite violence. TheGpurpose of the limited and restricted use of internet is to ensurethat the situation on the ground would not be aggravated bytargeted messages from outside the country. Further, theinternet allows for the transmission of false news or fake images,which are then used to spread violence. The dark web allowsHindividuals to purchase weapons and illegal substances easily.

•The learned Solicitor General submitted that the jurisprudenceAon free speech relating to newspapers cannot be applied to theinternet, as both the media are different. While newspapersonly allowed one-way communication, the internet makes two-way communication by which spreading of messages are veryeasy. The different context should be kept in mind by the CourtBwhile dealing with the restrictions with respect to the two media.

•While referring to various photographs, tweets and messagesof political leaders of Kashmir, he stated that these statementsare highly misleading,abrasive and detrimental to the integrityand sovereignty of India.

•Further, it is not possible to ban only certain websites/parts ofthe Internet while allowing access to other parts. Such ameasure was earlier attempted in 2017, but it was notsuccessful.

•Lastly, the learned Solicitor General submitted that the orderspassed under the Suspension Rules were passed in compliancewith the procedure in the Suspension Rules, and are beingreviewed strictly in terms of the same.

9. Some of the intervenors have supported the submissions madeby the learned Attorney General and the Solicitor General, and indicatedthat the restrictions were necessary and in compliance with the law.They have also submitted that normalcy is returning in the State of Jammuand Kashmir, and that the present petitions are not maintainable.

C. ISSUES

10. In line with aforesaid facts and arguments,the followingquestions of law arise for our consideration:

I.Whether the Government can claim exemption fromproducing 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 andfreedom to practise any profession, or to carry on anyoccupation, trade or business over the Internetis part ofthe fundamental rights under Part III of the Constitution?

III. Whether the Government’s action of prohibiting internetaccess is valid?

AIV.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 ORDERSB

11. The present petitions, their context and conduct of the parties,have placed this Court in peculiar situation. We have been asked to gointo the question of the validity of orders, restricting movement andcommunication, passed in the State of Jammu and Kashmir by variousauthorities, however, the orders are not before us. The Petitioners andCIntervenors claim that the orders were not available, which is why theycould not place them on record.

12. At the same time, while the non-availability of orders was notdenied by the Respondent-State, they did not produce the said orders. Infact, when this Court by order dated 16.10.2019 asked them to produceDthe orders, the Respondent-State placed on record only sample orders,citing difficulty in producing the numerous orders which were beingwithdrawn and modified on day-to-day basis. The Respondent-Statealso claimed that the plea to produce orders by the Petitioners was anexpansion of the scope of the present petitions.

E13. At the outset, perusal of the prayers in the Writ Petitionsbefore us should be sufficient to reject the aforementioned contention ofthe Respondent-State. In W.P. (C) No. 1164 of 2019 and I.A no. 157139in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 of 2019, prayer hasbeen made to issue writ of mandamus or any other writ directingFRespondent Nos. 1 and 2 to produce all orders by which movement ofall persons has been restricted since 04.08.2019. Further, production ofall orders by way of which communication has been blocked in State ofJammu and Kashmir has also been sought.

14. On the obligation of the State to disclose information,particularly in writ proceeding, this Court in Ram Jethmalani v. UnionGof India, (2011) 8 SCC 1, observed as follows:

“75. In order that the right guaranteed by clause (1) of Article 32be meaningful, and particularly because such petitions seek theprotection of fundamental rights, it is imperative that insuch proceedings the petitioners are not denied theH

information necessary for them to properly articulate thecase and be heard, especially where such information is inthe possession of the State.”

(emphasis supplied)

15. We may note that there are two separate types of reasoningthat mandates us to order production of the orders passed by theauthorities in this case. First, Article 19 of the Constitution has beeninterpreted to mandate right to information as an important facet of theright to freedom of speech and expression. democracy, which is swornto transparency and accountability, necessarily mandates the productionof orders as it is the right of an individual to know. Moreover, fundamentalrights itself connote qualitative requirement wherein the State has toact in responsible manner to uphold Part III of the Constitution and notto take away these rights in an implied fashion or in casual and cavaliermanner.16. Second, there is no dispute that democracy entails free flowof information. There is not only normative expectation under theConstitution, but alsoa requirement under natural law, that no law shouldbe passed in clandestine manner. As Lon L. Fuller suggests in hiscelebrated article “there can be no greater legal monstrosity than asecret statute”.[1] In this regard, Jeremy Bentham spoke about open justiceas the “keenest spur to exertion”. In the same context, James Madisonstated “apopular government, without popular information, or themeans of acquiring it, is but prologue to farce or tragedy; orperhaps both. Knowledge will forever govern the ignorance and apeople who mean to be their own Governors must arm themselveswith the power which knowledge gives”.

17. As general principle, on challenge being made regardingthe curtailment of fundamental rights as result of any order passed oraction taken by the State which is not easily available, the State shouldtake proactive approach in ensuring that all the relevant orders areplaced before the Court, unless there is some specific ground of privilegeor countervailing public interest to be balanced, which must be specificallyclaimed by the State on affidavit. In such cases, the Court could determinewhether, in the facts and circumstances, the privilege or public interest

1Lon L. Fuller, Positivism and Fidelity to Law: Reply to Professor Hart, The HarvardLaw Review, 71(4), 630, 651 [February, 1958].

Aclaim of the State overrides the interests of the Petitioner. Such portionof the order can be redactedor such material can be claimed as privileged,if the State justifies such redaction on the grounds, as allowed under thelaw.

18. In the present case, while the State initially claimed privilege,Bit 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 valid ground to refuse production of orders before the Court.

E. FUNDAMENTAL RIGHTS UNDER PART III ANDRESTRICTIONS THEREOF

19. The petitioners have contended that the impugned restrictionshave affected the freedom of movement, freedom of speech andexpression and right to free trade and avocation. In this context, wehave to first examine the nature of the fundamental rights provided underthe Constitution.D

20. The nature of fundamental rights under Part III of theConstitution is well settled.The fundamental rights areprescribed as anegative list, so that “no person could be denied such right until theConstitution itself prescribes such limitations”. The only exception to theaforesaid formulation is Article 21A of the Constitution,which is positiveEright that requires an active effort by the concerned government to ensurethat the right to education is provided to all children up to the age of 16years.

21. The positive prescription of freedom of expression will resultin different consequences which our own Constitution has not enteredFinto. Having different social and economic backgrounds and existing ona different scale of development, the human rights enshrined thereinhave taken different role and purpose. The framers of the IndianConstitution were aware of the situation of India, including the socio-economic costs of such proactive duty, and thereafter took an informeddecision to restrict the application of fundamental rights in negativeGmanner. This crucial formulation is required to be respected by thisCourt,which has to uphold the constitutional morality behind utilization ofsuch negative prescriptions.

22. Now, we need to concern ourselves about the freedom ofexpression overthe medium of internet. There is no gainsaying that inHtoday’s world the internet stands as the most utilized and accessible

medium for exchange of information. The revolution within thecyberspace has been phenomenal in the past decade, wherein thelimitation of storage space and accessibility of print medium has beenremedied by the usage of internet.

23. At this point it is important to note the argument of Mr. VintonG. Cerf, one of the ‘fathers of the internet’. He argued that while theinternet is very important, however, it cannot be elevated to the status ofa human right.[2] Technology, in his view, is an enabler of rights and not aright in and of itself. He distinguishes between placing technology amongthe exalted category of other human rights, such as the freedom ofconscience, equality etc. With great respect to his opinion, the prevalenceand extent of internet proliferation cannot be undermined in one’s life.

24. Law and technology seldom mix like oil and water. There is aconsistent criticism that the development of technology is not met byequivalent movement in the law. In this context, we need to note that thelaw should imbibe the technological development and accordingly mouldits rules so as to cater to the needs of society. Non recognition oftechnology within the sphere of law is only disservice to the inevitable.In this light, the importance of internet cannot be underestimated, asfrom morning to night we are encapsulated within the cyberspace andour most basic activities are enabled by the use of internet.

25. We need to distinguish between the internet as tool and thefreedom of expression through the internet. There is no dispute thatfreedom of speech and expression includes the right to disseminateinformation to as wide section of the population as is possible. Thewider range of circulation of information or its greater impact cannotrestrict the content of the right nor can it justify its denial. [refer toSecretary, Ministry of Information & Broadcasting Government ofIndia v. Cricket Association of Bengal, (1995) 2 SCC 161;ShreyaSinghal v. Union of India, (2015) 5 SCC 1].

26. The development of the jurisprudence in protecting the mediumfor expression can be traced to the case of Indian Express v. Union ofIndia, (1985) 1 SCC 641, wherein this Court had declared that thefreedom of print medium is covered under the freedom of speech andexpression. In Odyssey Communications Pvt. Ltd. v. LokvidayanSanghatana, (1988) 3 SCC 410, it was held that the right of citizens to

2Vinton G. Cerf, Internet Access is not Human Right, The New York Times (January04, 2012).

Aexhibit films on Doordarshan, subject to the terms and conditions to beimposed by the Doordarshan, is part of the fundamental right offreedom of expression guaranteed under Article 19(1)(a), which can becurtailed only under circumstances set out under Article 19(2). Further,this Court expanded this protection to the use of airwaves in the case ofSecretary, Ministry of Information & Broadcasting, Government ofBIndia(supra). In this context, we may note that this Court, in catenaof judgments, has recognized free speech as fundamental right, and,astechnology has evolved, has recognized the freedom of speech andexpression overdifferent media of expression. Expression through theinternet has gained contemporary relevance and is one of the majorCmeans of information diffusion. Therefore, the freedom of speech andexpression through the medium of internet is an integral part of Article19(1)(a) and accordingly, any restriction on the same must be inaccordance with Article 19(2) of the Constitution.27. In this context, we need to note that the internet is also veryDimportant tool for trade and commerce. The globalization of the Indianeconomy and the rapid advances in information and technology haveopened up vast business avenues and transformed India as global IThub. There is no doubt that there are certain trades which are completelydependent on the internet. Such right of trade through internet alsofosters consumerism and availability of choice. Therefore, the freedomEof trade and commerce through the medium of the internetis alsoconstitutionally protected under Article 19(1)(g), subject to the restrictionsprovided under Article 19(6).

28. None of the counsels have argued for declaring the right toaccess the internet as fundamental right and therefore we are notFexpressing any view on the same. We are confining ourselves to declaringthat 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 themedium of internet is constitutionally protected.

29. Having explained the nature of fundamental rights and theGutility of internet under Article 19 of the Constitution, we need to concernourselves with respect to limitations provided under the Constitution onthese rights. With respect to thefreedom of speech and expression,restrictions are provided under Article 19(2) of the Constitution, whichreads as under:H

“(2) Nothing in sub clause (a) of clause (1) shall affect theoperation of any existing law, or prevent the State from makingany law, in so far as such law imposes reasonable restrictions onthe exercise of the right conferred by the said sub-clause in theinterests of the sovereignty and integrity of India, the security ofthe State, friendly relations with foreign States, public order,decency or morality or in relation to contempt of court, defamationor incitement to an offence.”

30. The right provided under Article 19(1) has certain exceptions,which empowers the State to impose reasonable restrictions in appropriatecases. 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 reasonable restriction;

c. Such restriction must be in furtherance of interests of thesovereignty and integrity of India, the security of the State,friendly relations with foreign States, public order, decencyDor morality or in relation to contempt of court, defamationor incitement to an offence.

31. At the outset, the imposition of restriction is qualified by theterm ‘reasonable’ and is limited to situations such as interests of thesovereignty, integrity, security, friendly relations with the foreign States,public order, decency or morality or contempt of Court, defamation orincitement to an offence. Reasonability of restriction is used in aqualitative, quantitative and relative sense.

32. It has been argued by the counsel for the Petitioners that therestrictions under Article 19 of the Constitution cannot mean completeprohibition. In this context we may note that the aforesaid contentioncannot be sustained in light of number of judgments of this Court whereintherestriction has also been held to include complete prohibition inappropriate cases. [Madhya Bharat Cotton Association Ltd. v. Unionof 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 SCC615, Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87and Dharam Dutt v. Union of India, (2004) 1 SCC 712]

A33. The study of aforesaid case law points to three propositionswhich emerge with respect to Article 19(2) of the Constitution. (i)Restriction on free speech and expression may include cases ofprohibition. (ii) There should not be excessive burden on free speecheven if complete prohibition is imposed, and the government has tojustify imposition of such prohibition and explain as to why lesserBalternatives would be inadequate. (iii) Whether restriction amounts toa complete prohibition is question of fact, which is requiredto bedetermined by the Court with regard to the facts and circumstances ofeach case. [refer to State of Gujarat v. Mirzapur Moti Kureshi KassabJamat, (2005) 8 SCC 534].C

34. The second prong of the test, wherein this Court is required tofind whether the imposed restriction/prohibition was least intrusive, bringsus to the question of balancing and proportionality. These concepts arenot new formulation under the Constitution. In various parts of theConstitution, this Court has taken balancing approach to harmonizeDtwo competing rights. In the case of Minerva Mills Ltd. v. Union ofIndia, (1980) 2 SCC 591 and Sanjeev Coke Manufacturing Companyv. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147, this Court hasalready applied the balancing approach with respect tofundamental rightsand the directive principles of State Policy.

E35. Before, we delve into the nuances of ‘restriction’ as occurringunder Article 19(2) of the Constitution, we need to observe certain factsand circumstances in this case. There is no doubt that Jammu andKashmir has been hot bed of terrorist insurgencies formany years. Inthis light, we may note the State’s submission that since 1990 to 2019there have been 71,038 recorded incidents of terrorist violence, 14,038Fcivilians have died, 5292 security personnel were martyred, 22,536terrorists were killed. The geopolitical struggle cannot be played downor ignored. In line with the aforesaid requirement, we may note thateven the broadest guarantee of free speech would not protect the entiregamut of speech. The question which begs to be answered is whetherGthere exists clear and present danger in restricting such expression.

36. Modern terrorism heavily relies on the internet. Operations onthe internet do not require substantial expenditure and are not traceableeasily. The internet is being used to support fallacious proxy wars byraising money, recruiting and spreading propaganda/ideologies. TheHprevalence of the internet provides an easy inroad to young impressionable

minds. In this regard, Gregory S. McNeal,[3] Professor of Law and PublicPolicy, Pepperdine University,states in his article about propaganda andthe use of internet in the following manner:

“Terrorist organisations have also begun to employ websites as aform of information warfare. Their websites can disperseinaccurate information that has far-reaching consequences.Because internet postings are not regulated sources of news, theycan reflect any viewpoint, truthful or not. Thus, readers tend toconsider internet items to be fact, and stories can go uncheckedfor some time. Furthermore, streaming video and pictures offrightening scenes can support and magnify these news stories.As result, the internet is powerful and effective tool forspreading propaganda.”37. Susan W. Brenner,[4 ]NCR Distinguished Professor of Lawand Technology, University of Dayton School of Law, also notes that thetraditional approach has not worked satisfactorily on terrorism due tothe proliferation of the internet.It is the contention of the respondentsthat the restriction on the freedom of speech was imposed due to thefact that there were national security issues over and above law andorder situation, wherein there were problems of infiltration and supportfrom the other side of the border to instigate violence and terrorism. Thelearned Solicitor General pointed out that the ‘war on terrorism’ requiresimposition of such restriction so as to nip the problem of terrorismin thebud. He submitted that in earlier times, sovereignty and integrity of aState was challenged only on occurrence of war. In some cases, therehave been instances where the integrity of the State has been challengedby secessionists. However, the traditional conceptions of warfare haveundergone an immense change and now it has been replaced by newterm called ‘war on terror’. This war, unlike the earlier ones, is notlimited to territorial fights, rather, it transgresses into other forms affectingnormal life. The fight against terror cannot be equated to law andorder situation as well. In this light, we observe that this confusion ofcharacterising terrorism as war stricto sensu or normal law andorder situation has plagued the submission of the respondent Governmentand we need to carefully consider such submissions.

3Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res.J. Int’l L. 789 (2007).

4Susan W. Brenner, Why the Law Enforcement Model is Problematic Strategy forDealing with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005).

A38. Before analysing the restrictions imposed on the freedom ofspeech and expression in the Indian context, we need to have broadanalysis of the state of affairs in the United States of America (hereinafter‘US’) where freedom of expression under the First Amendment is treatedto be very significant withthe US being perceived to be one of the liberalconstituencies with respect to free speech jurisprudence. However, weBneed to refer to the context and state of law in the US, before we canunderstand such an assertion.

39. During the US civil war, dramatic confrontation over freespeech arose with respect to the speech of Clement L. Vallandigham,who gave speech calling the civil war ‘wicked, cruel and unnecessary’.CHe urged the citizens to use ballot boxes to hurl ‘President Lincoln’ fromhis throne. As reaction, Union soldiers arrested Mr. Vallandigham andhe had to face five-member military commission which charged himwith ‘declaring disloyal sentiments and opinions with the objectand purpose of weakening the power of the government in its effortsDto suppress an unlawful rebellion’. [Ex parte Vallandigham, 28 F.Cas. 874 (1863)] The commission found Mr. Vallandigham guilty andimposed imprisonment during the war. The aforesaid imprisonment wasmet with demonstrations and publications calling such imprisonment asa crime against the US Constitution. President Lincoln, having regard tothe US Constitution, commuted the imprisonment and converted the sameEto banishment. He justified the aforesaid act by stating that banishmentwas more humane and less disagreeable means of securing leastrestrictive measures.40. During World War I, many within the US had strong feelingsagainst the war and the draft imposed by the administration of PresidentFWoodrow Wilson. During this period, the US enacted the EspionageAct, 1917 which penalised any person who wilfully caused or attemptedto cause insubordination, disloyalty, mutiny by refusal from duty or navalservices. In any case, in Abraham v. United States, 250 U.S. 616 (1919),Justice Holmes even in his dissent observed as under:G“I do not doubt for moment that, by the same reasoning thatwould justify punishing persuasion to murder, the United Statesconstitutionally may punish speech that produces or is intended toproduce clear and imminent danger that it will bring aboutforthwith certain substantive evils that the United StatesHconstitutionally may seek to prevent. The power undoubtedly

isgreater in time of war than in time of peace, because waropens dangers that do not exist at other times.”

(emphasis supplied)

41. The Second World War was also riddled with instances oftussle between the First Amendment and national security issues. Aninstance of the same was the conviction of William Dudley Pelley, underthe Espionage Act, 1917, which the Supreme Court of United Statesrefused to review.

42. During the Cold War, the attention of the American Congresswas on the increase of communism. In 1954, Congress even enactedthe Communist Control Act, which stripped the Communist party of allrights, privileges and immunities. During this time, Dennis v. UnitedStates, 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 forany person to knowingly or wilfully advocate with the intent of theoverthrowing or destroying the Government of the United States by forceor violence, to organize or help to organize any group which does so, orto conspire to do so. The Petitioner in the aforementioned case challengedthe aforesaid provision on the ground that these provisions violated theFirst Amendment. The US Supreme Court held:

“An analysis of the leading cases in this Court which have involveddirect limitations on speech, however, will demonstrate that boththe majority of the Court and the dissenters in particular caseshave recognized that this is not an unlimited, unqualified right, butthat the societal value of speech must, on occasion, be subordinatedto other values and considerations.”

43. During the Vietnam war, the US Supreme Court had to dealwith the case of Brandenburg v. Ohio, 395 US 444 (1969), wherein theCourt over-ruled Dennis (supra) and held that the State cannot punishadvocacy of unlawful conduct, unless it is intended to incite and is likelyto incite ‘imminent lawless action’.

44. There is no doubt that the events of September 2001 broughtnew challenges to the US in the name of ‘war on terror’. In this context,Attorney General John Ashcroft stated that “To those… who scarepeace-loving people with phantoms of lost liberty, my message isthis: Your tactics only aid terrorists, for they erode our national

Aunity and diminish our resolve. They give ammunition to America’senemies…’.[5 ]However, Bruce Ackerman, in his article,[6] states that:

“The “war on terrorism” has paid enormous politicaldividends....but that does not make it compelling legal concept.War is traditionally defined as state of belligerency betweenBsovereigns....The selective adaptation of doctrines dealing withwar predictably leads to sweeping incursions on fundamentalliberties.”

45. From the aforesaid study of the precedents and facts, wemay note that the law in the US has undergone lot of changes concerningCdissent during war. The position that emerges is that any speech whichincites imminent violence does not enjoy constitutional protection.

46. It goes without saying that the Government is entitled torestrictthe freedom of speech and expression guaranteed under Article19(1)(a) if the need be so, in compliance with the requirements underDArticle 19(2). It is in this context, while the nation is facing such adversity,an abrasive statement with imminent threat maybe restricted, if the sameimpinges upon sovereignty and integrity of India. The question is one ofextent rather than the existence of the power to restrict.

47. The requirement of balancing various considerations bringsEus to the principle of proportionality. In the case ofK.S. Puttaswamy (Privacy-9J.) (supra), this Court observed:

“310…Proportionality is an essential facet of the guarantee againstarbitrary State action because it ensures that the nature and qualityof the encroachment on the right is not disproportionate to theFpurpose of the law...”48. Further, in the case of CPIO v Subhash Chandra Aggarwal,(2019) SCC OnLine SC 1459, the meaning of proportionality wasexplained as:

“225…It is also crucial for the standard of proportionality to beGapplied to ensure that neither right is restricted to greater extentthan necessary to fulfil the legitimate interest of the countervailinginterest in question…”

5 Senate Judiciary Committee Hearing on Anti-Terrorism Policy, 106th Cong. (Dec. 6,2001) (testimony of Attorney General John Ashcroft)6 Ackerman, Bruce, “The Emergency Constitution”, Faculty Scholarship Series, 113H(2004).

49. At the same time, we need to note that when it comes tobalancing national security with liberty, we need to be cautious. In thewords of Lucia Zedner[7]:

“Typically, conflicting interests are said to be ‘balanced’ as if therewere self-evident weighting of or priority among them. Yet rarelyare the particular interests spelt out, priorities made explicitly, orthe process by which weight is achieved made clear. Balancingis presented as zero-sum game in which more of one necessarilymeans less of the other … Although beloved of constitutionallawyers and political theorists, the experience of criminal justiceis that balancing is politically dangerous metaphor unless carefulregard is given to what is at stake.”

50. The proportionality principle, can be easily summarized byLord Diplock’s aphorism ‘you must not use steam hammer to cracka nut, if nutcracker would do?’ [refer to R v. Goldsmith, [1983] 1WLR 151, 155 (Diplock J)]. In other words, proportionality is all aboutmeans and ends.

51. The suitability of proportionality analysis under Part III, needsto be observed herein. The nature of fundamental rights has beenextensively commented upon. One view is that the fundamental rightsapply as ‘rules’, wherein they apply in an ‘all-or-nothing fashion’. Thisview is furthered by Ronald Dworkin, whoargued in his theory thatconcept of right implies its ability to trump over public good.[8 ]Dworkin’sview necessarily means that the rights themselves are the end, whichcannot be derogated as they represent the highest norm under theConstitution. This would imply that if the legislature or executive act in aparticular manner, in derogation of the right, with an object of achievingpublic good, they shall be prohibited from doing so if the aforesaid actionrequires restriction of right. However, while such an approach is oftentaken by American Courts, the samemay not be completely suitable inthe Indian context, having regardto the structure of Part III which comeswith inbuilt restrictions.

7Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice,

(2005) 32 Journal of Law and Society 510.

8Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights(1984) 153 (hereinafter Dworkin, “Rights as is trumps”).

A52. However, there is an alternative view, held by Robert Alexy,wherein the ‘fundamental rights’ are viewed as ‘principles’,[9] whereinthe rights are portrayed in normative manner. Rules are norms that arealways either fulfilled or not; whereas principles are norms which requirethat something be realized to the greatest extent possible given the legaland factual possibilities.[10 ]This characterisation of principles hasBimplications for how to deal with conflicts between them: it means thatwhere they conflict, one principle has to be weighed against the otherand determination has to be made as to which has greater weight inthis context.[11] Therefore, he argues that nature of principles implies theprinciple of proportionality.[12]C

53. The doctrine of proportionality is not foreign to the IndianConstitution, considering the use of the word ‘reasonable’ under Article19 of the Constitution. In catena of judgments, this Court has held“reasonable restrictions” are indispensable for the realisation of freedomsenshrined under Article 19, as they are what ensure that enjoyment ofDrights is not arbitrary or excessive, so as to affect public interest. ThisCourt, while sitting in Constitution Bench in one of its earliest judgmentsin Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118interpreted limitations on personal liberty, and the balancing thereof, asfollows:

E“7. The phrase “reasonable restriction” connotes that thelimitation imposed on person in enjoyment of theright should not be arbitrary or of an excessive nature, beyondwhat is required in the interests of the public. The word“reasonable” implies intelligent care and deliberation, that is, thechoice of course which reason dictates. Legislation whichFarbitrarily or excessively invades the right cannot be said tocontain the quality of reasonableness and unless it strikes aproper balance between the freedom guaranteed in Article 19(1)(g)and the social control permitted by clause (6) of Article 19, it mustbe held to be wanting in that quality.”

(emphasis supplied)

9R. Alexy, Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).

10Ibid at page 47.

11Ibid, page 50.H12Ibid, page 66.

This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,whilelaying down the test of reasonableness, held that:

15. … It is important in this context to bear in mind that the testof reasonableness, wherever prescribed, should be applied to eachindividual statute impugned, and no abstract standard or general pattern,of reasonableness can be laid down as applicable to all cases. The natureof the right alleged to have been infringed, the underlying purposeof the restrictions imposed, the extent and urgency of the evilsought to be remedied thereby, the disproportion of theimposition, the prevailing conditions at the time, should all enterinto the judicial verdict….

(emphasis supplied)

Constitution Bench of this Court in Mohammed Faruk v. Stateof Madhya Pradesh, (1969) 1 SCC 853 while determining rights underArticle 19(1)(g) of the Constitution, discussed the doctrine ofproportionality in the aforesaid terms:

“10. … The Court must in considering the validity of the impugnedlaw imposing prohibition on the carrying on of business orprofession, attempt an evaluation of its direct and immediateimpact upon the fundamental rights of the citizens affectedthereby and the larger public interest sought to be ensuredin the light of the object sought to be achieved, the necessityto restrict the citizen’s freedom … the possibility ofachieving the object by imposing less drastic restraint …or that less drastic restriction may ensure the objectintended to be achieved.”

(emphasis supplied)

In the case of Om Kumar v. Union of India, (2001) 2 SCC 386the principle of proportionality, in light of administrative orders, wasexplained as follows:

28. By “proportionality”, we mean the question whether,while regulating exercise of fundamental rights, the appropriateor least-restrictive choice of measures has been made by thelegislature or the administrator so as to achieve the object of thelegislation or the purpose of the administrative order, as the casemaybe. Under the principle, the court will see that the legislature and

Athe administrative authority ”maintain proper balance betweenthe adverse effects which the legislation or the administrativeorder may have on the rights, liberties or interests of personskeeping in mind the purpose which they were intended to serve”.The legislature and the administrative authority are, however, given anarea of discretion or range of choices but as to whether the choiceBmade infringes the rights excessively or not is for the court. That is whatis meant by proportionality.

(emphasis supplied)

[See also State of Bihar v. Kamla Kant Misra, (1969) 3 SCCC337; BishambharDayal Chandra Mohan v. State of Uttar Pradesh,(1982) 1 SCC 39]

54. Recently, this Court in Modern Dental College & ResearchCentre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held thatno constitutional right can be claimed to the absolute in realm whereDrights are interconnected to each other, and limiting some rights in publicinterest might therefore be justified. The Court held as follows:

“62. It is now almost accepted that there are no absoluteconstitutional rights. [Though, debate on this vexed issue stillcontinues and some constitutional experts claim that there areEcertain rights, albeit very few, which can still be treated as“absolute”. Examples given are:(a) Right to human dignity whichis inviolable,(b) Right not to be subjected to torture or to inhumanor degrading treatment or punishment. Even in respect of suchrights, there is thinking that in larger public interest, theextent of their protection can be diminished. However, soFfar such attempts of the States have been thwarted by thejudiciary.] … In fact, such provision in Article 19 itself on theone hand guarantees some certain freedoms in clause (1) of Article19 and at the same time empowers the State to impose reasonablerestrictions on those freedoms in public interest. This notionGaccepts the modern constitutional theory that theconstitutional rights are related. This relativity means thata constitutional licence to limit those rights is granted wheresuch limitation will be justified to protect public interestor the rights of others. This phenomenon—of both the rightand its limitation in the Constitution—exemplifies the

inherent tension between democracy’s two fundamentalelements...”

(emphasis supplied)

55. In the aforesaid case, this Court was posed with dilemma asto how to treat competing rights. The Court attempted toresolve theconflict by holding that rights and limitations must be interpretedharmoniously so as to facilitate coexistence. This Court observed therein:

“62… On the one hand is the right’s element, which constitutes afundamental component of substantive democracy; on the otherhand is the people element, limiting those very rights through theirrepresentatives. These two constitute fundamental componentof the notion of democracy, though this time in its formal aspect.How can this tension be resolved? The answer is that thistension is not resolved by eliminating the “losing” facetfrom the Constitution. Rather, the tension is resolved byway of proper balancing of the competing principles. Thisis one of the expressions of the multi-faceted nature of democracy.Indeed, the inherent tension between democracy’s differentfacets is “constructive tension”. It enables each facet todevelop while harmoniously coexisting with the others. Thebest way to achieve this peaceful coexistence is throughbalancing between the competing interests. Such balancingenables each facet to develop alongside the other facets,not in their place. This tension between the two fundamentalaspects—rights on the one hand and its limitation on the otherhand—is to be resolved by balancing the two so that theyharmoniously coexist with each other. This balancing is to bedone keeping in mind the relative social values of eachcompetitive aspects when considered in proper context.”

(emphasis supplied)

56. The next conundrum faced by the Court was in achieving therequisite balance, the solution for which was derived from the principleof proportionality. The eminent constitutional jurist, Kai Möller statesthat the proportionality principle is the doctrinal tool which guides Judgesthrough the process of resolving these conflicts.[13 ]One of the theories of

13Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford UniversityPress, 2012).

Aproportionality widely relied upon by most theorists is the versiondeveloped by the German Federal Constitutional Court. The aforesaiddoctrine lays down four pronged test wherein, first, it has to be analysedas to whether the measure restricting the rights serves legitimate goal(also called as legitimate goal test), then it has to be analysed whetherthe measure is suitable means of furthering this goal (the rationalBconnection stage), next it has to be assessed whether there existed anequally effective but lesser restrictive alternative remedy (the necessitytest) and at last, it should be analysed if such measure had adisproportionate impact on the right-holder (balancing stage). Oneimportant feature of German test is the last stage of balancing, whichCdetermines the outcome as most of the important issues are pushed tothe balancing stage and the same thereby dominates the legal analysis.Under this approach, any goal which is legitimate will be accepted; asusually lesser restrictive measure might have the disadvantage of beingless effective and even marginal contribution to the goal will suffice therational connection test.[14]D

57. The aforesaid test needs to be contrasted with its Canadiancounterpart also known as the Oakes test. According to the said doctrine,the object of the measure must be compelling enough to warrant overridingof the constitutionally guaranteed freedom; rational nexus must existbetween such measure and the object sought to be achieved; the meansEmust be least restrictive; and lastly, there must be proportionality betweenthe effects of such measure and the object sought to be achieved. Thisdoctrine 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):F“To establish that limit is reasonable and demonstrably justifiedin free and democratic society, two central criteria must besatisfied. First, the objective, which the measures, responsible fora limit on Charter right or freedom are designed to serve, mustbe “of sufficient importance to warrant overriding constitutionallyGprotected right or freedom” … Second … the party invokingSection 1 must show that the means chosen are reasonable anddemonstrably justified. This involves “a form of proportionalitytest”… Although the nature of the proportionality test will vary

14Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation,HReasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).

depending on the circumstances, in each case courts will berequired to balance the interests of society with those of individualsand groups. There are, in my view, three importantcomponents of proportionality test. First, the measuresadopted 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 aproportionality between the effects of the measures whichare responsible for limiting the Charter right or freedom,and the objective which has been identified as of “sufficientimportance”... The more severe the deleterious effects of ameasure, the more important the objective must be if the measureis to be reasonable and demonstrably justified in free anddemocratic society.”

(emphasis supplied)

58. As can be seen, there exists substantial difference in bothapproaches, as the Oakes test, instead of requiring “any” legitimategoal, demands the same to be compelling enough to warrant the limitationof constitutional rights. Additionally, while the German necessity testcalls for lesser restrictive measure which is equivalently effective, theneed for effectiveness has been done away with in the Oakes test whereinthe requirement of least infringing measure has been stipulated.

59. It is also imperative for us to place reliance on Aharon Barak’sseminal book[15] on proportionality upon which Dr A.K. Sikri, J. placedreliance while expounding the doctrine of proportionality in ModernDental College case (supra) as follows:

“60. … limitation of constitutional right will be constitutionallypermissible if:

(i) it is designated for proper purpose;

(ii) the measures undertaken to effectuate such limitation arerationally connected to the fulfilment of that purpose;

(iii) the measures undertaken are necessary in that there are noalternative measures that may similarly achieve that samepurpose with lesser degree of limitation; and finally

15Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (CambridgeUniversity Press, 2012)

A(iv) there needs to be proper relation (“proportionality strictosensu” or “balancing”) between the importance of achievingthe proper purpose and the social importance of preventing thelimitation on the constitutional right.”

(emphasis supplied)

60. In Modern Dental College case (supra), this Court also wenton to analyse that the principle of proportionality is inherently embeddedin Indian Constitutionunder the realm of the doctrine of reasonablerestrictions and that the same can be traced under Article 19. The relevantextracts are placed below:

“65. We may unhesitatingly remark that this doctrine ofproportionality, explained hereinabove in brief, is enshrinedin Article 19 itself when we read clause (1) along with clause(6) thereof. While defining as to what constitutes reasonablerestriction, this Court in plethora of judgments has held that theDexpression “reasonable restriction” seeks to strike balancebetween the freedom guaranteed by any of the sub-clauses ofclause (1) of Article 19 and the social control permitted by any ofthe clauses (2) to (6). It is held that the expression“reasonable” connotes that the limitation imposed on aperson in the enjoyment of the right should not be arbitraryEor of an excessive nature beyond what is required in theinterests of public. Further, in order to be reasonable, therestriction must have reasonable relation to the object which thelegislation seeks to achieve, and must not go in excess of thatobject (see P.P. Enterprises v. Union of India, (1982) 2 SCCF33). At the same time, reasonableness of restriction hasto be determined in an objective manner and from thestandpoint of the interests of the general public and notfrom the point of view of the persons upon whom therestrictions are imposed or upon abstract considerations(see Mohd.Hanif Quareshi v. State of Bihar, AIR 1958 SCG731).”

(emphasis supplied)

61. Thereafter, comprehensive doctrine of proportionality in linewith the German approach was propounded by this Court in the ModernDental College case (supra) wherein the Court held that:H

“63. In this direction, the next question that arises is as to whatcriteria is to be adopted for proper balance between the twofacets viz. the rights and limitations imposed upon it by statute.Here comes the concept of “proportionality”, which is aproper criterion. To put it pithily, when law limits aconstitutional right, such alimitation is constitutional if it isproportional. The law imposing restrictions will be treated asproportional if it is meant to achieve proper purpose, and if themeasures taken to achieve such purpose are rationally connectedto the purpose, and such measures are necessary...

64. The exercise which, therefore, is to be taken is to find out asto whether the limitation of constitutional rights is for purposethat is reasonable and necessary in democratic society and suchan exercise involves the weighing up of competitive values, andultimately an assessment based on proportionality i.e. balancingof different interests.”

(emphasis supplied)

62. While some scholars such as Robert Alexy[16 ]call for stronginterpretation of the necessity stage as it has direct impact upon therealisation and optimisation of constitutional rights while others such asDavid Bilchitz[17] found significant problems with this approach.

63. First, Bilchitz focuses on the issues arising out of both theGerman test and the Oakes test, wherein the former treats all policies tobe necessary by justifying that the available alternatives may not beequally effective,while the latter applies the “minimal impairment test”narrowing the constitutionally permissible policies and places strongburden on the Government to justify its policies. Therefore, Bilchitz arguesthat if the necessity stage is interpreted strictly, legislations and policiesno matter how well intended will fail to pass the proportionality inquiry ifany other slightly less drastic measure exists. Bilchitz, therefore, indicatesthat Alexy’s conclusion may be too quick.

64. Moreover, this also leads to the issue regarding the doctrine ofseparation of power, as Courts would often substitute the views of thelegislature in deciding what is the “least restrictive measure”. Taking the

16Robert Alexy, Theory of Constitutional Rights (Oxford, Oxford University Press,2002) 47.

17David Bilchitz, Necessity and Proportionality: Towards Balanced Approach? in L.Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).

Aaforesaid issues into consideration, Bilchitz proposed moderateinterpretation of the necessity test wherein Courts may no longer berequired to assess policies and measures against impractical andunreasonable standards. He states that “[n]ecessity involves processof reasoning designed to ensure that only measures with strongrelationship to the objective they seek to achieve can justify anBinvasion of fundamental rights. That process thus requires courtsto reason through the various stages of the moderate interpretationof necessity.”[18] He therefore recommends four-step inquiry which islisted below:[19]

(MN1) All feasible alternatives need to be identified, with courtsCbeing explicit as to criteria of feasibility;

(MN2) The relationship between the government measure underconsideration, the alternatives identified in MN1 and the objectivesought to be achieved must be determined. An attempt must bemade to retain only those alternatives to the measure that realiseDthe objective in real and substantial manner;

(MN3) The differing impact of the measure and the alternatives(identified in MN2) upon fundamental rights must be determined,with it being recognised that this requires recognition ofapproximate impact; andE

(MN4) Given the findings in MN2 and MN3, an overall comparison(and balancing exercise) must be undertaken between the measureand the alternatives. judgement must be made whether thegovernment measure is the best of all feasible alternatives,considering both the degree to which it realises the governmentFobjective and the degree of impact upon fundamental rights (‘thecomparative component’).

65. Admittedly, fundamental rights may not be absolute, however,they require strong protection, thereby mandating sensible necessitytest as the same will prevent the fundamental right from becoming eitherGabsolute or to be diminished. Bilchitz, describes the aforesaid test to beneither factual nor mechanical, but rather normative and qualitative. He

18 Ibid, page 61.19 Ibid, page 61.H

states that “[t]he key purpose of the necessity enquiry is to offer anexplicit consideration of the relationship between means, objectivesand rights… Failure to conduct the necessity enquiry with diligence,however, means that government measure can escape closescrutiny in relation to both the realisation of the objective and itsimpact 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 SCC1(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the testlaid down in Modern Dental College Case (supra) which was basedon the German Test and modulated the same as against the tests laiddown by Bilchitz. Therein this Court held that:

“157. In Modern Dental College & Research Centre [ModernDental College & Research Centre v. State of M.P., (2016) 7SCC 353], four sub-components of proportionality which need tobe satisfied were taken note of. These are:

(a) measure restricting right must have legitimate goal(legitimate goal stage).

(b) It must be suitable means of furthering this goal (suitabilityor rational connection stage).

(c) There must not be any less restrictive but equally effectivealternative (necessity stage).

(d) The measure must not have disproportionate impact on theright-holder (balancing stage).

158.This has been approved in K.S. Puttaswamy [K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1] as well.Therefore, the aforesaid stages of proportionality can be lookedinto and discussed. Of course, while undertaking this exerciseit has also to be seen that the legitimate goal must be ofsufficient importance to warrant overriding constitutionallyprotected right or freedom and also that such right impairsfreedom as little as possible. This Court, in its earlier judgments,applied German approach while applying proportionality test tothe case at hand. We would like to proceed on that very basiswhich, however, is tempered with more nuanced approach as

Asuggested by Bilchitz. This, in fact, is the amalgam of Germanand Canadian approach. We feel that the stages, as mentionedin Modern Dental College & Research Centre [Modern DentalCollege & Research Centre v. State of M.P., (2016) 7 SCC353] and recapitulated above, would be the safe method inundertaking this exercise, with focus on the parameters asBsuggested by Bilchitz, as this projects an ideal approachthat need to be adopted.”

(emphasis supplied)

67. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar-5J.)C(supra), made observations on the test of proportionality that needs tobe satisfied under our Constitution for violationof the right to privacy tobe 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 usD(Chandrachud, J.), speaking for four Judges, laid down the teststhat would need to be satisfied under our Constitution for violationsof privacy to be justified. This included the test of proportionality:(SCC p. 509, para 325)

“325. … law which encroaches upon privacy will have toEwithstand the touchstone of permissible restrictions onfundamental rights. In the context of Article 21 an invasion ofprivacy must be justified on the basis of law which stipulatesa procedure which is fair, just and reasonable. The law mustalso be valid with reference to the encroachment on life andpersonal liberty under Article 21. An invasion of life orFpersonal liberty must meet the threefold requirement of(i) legality, which postulates the existence of law; (ii)need, defined in terms of legitimate State aim; and (iii)proportionality which ensures rational nexus betweenthe objects and the means adopted to achieve them.”

GThe third principle [(iii) above] adopts the test of proportionalityto ensure rational nexus between the objects and the meansadopted to achieve them. The essential role of the test of proportionalityis to enable the court to determine whether legislative measure isdisproportionate in its interference with the fundamental right. Indetermining this, the court will have regard to whether less intrusiveH

measure could have been adopted consistent with the object of the lawand whether the impact of the encroachment on fundamental right isdisproportionate to the benefit which is likely to ensue. The proportionalitystandard must be met by the procedural and substantive aspects of thelaw. Sanjay Kishan Kaul, J., in his concurring opinion, suggesteda four-pronged test as follows: (SCC p. 632, para 638)

“(i)The action must be sanctioned by law;

(ii)The proposed action must be necessary in ademocratic society for legitimate aim;

(iii)The extent of such interference must be proportionateto the need for such interference;

(iv)There must be procedural guarantees against abuseof such interference.”

(emphasis supplied)

68. After applying the aforesaid doctrine in deciding theconstitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., inthe K.S. Puttaswamy (Aadhaar-5J.) case (supra), reiterated thefundamental precepts of doctrine of proportionality in relation to protectionof privacy interests while dealing with personal data:

“1324.The fundamental precepts of proportionality, as theyemerge from decided cases can be formulated thus:

1324.1.A law interfering with fundamental rights must be inpursuance of legitimate State aim;

1324.2.The justification for rights-infringing measures thatinterfere with or limit the exercise of fundamental rightsand liberties must be based on the existence of arational connection between those measures, thesituation in fact and the object sought to be achieved;

1324.3.The measures must be necessary to achieve theobject and must not infringe rights to an extentgreater 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

A1324.5.The State must provide sufficient safeguards relatingto the storing and protection of centrally storeddata. In order to prevent arbitrary or abusiveinterference with privacy, the State must guarantee thatthe collection and use of personal information is basedon the consent of the individual; that it is authorised byBlaw and that sufficient safeguards exist to ensure thatthe data is only used for the purpose specified at thetime of collection. Ownership of the data must at alltimes vest in the individual whose data is collected. Theindividual must have right of access to the dataCcollected and the discretion to opt out.”

(emphasis supplied)

69. This is the current state of the doctrine of proportionality as itexists in India, wherein proportionality is the key tool to achieve judicialbalance. But many scholars are not agreeable to recognize proportionalityDequivalent to that of balancing.[21]

70. In view of the aforesaid discussion, we may summarize therequirements of the doctrine of proportionality which must be followedby the authorities before passing any order intending on restrictingfundamental rights of individuals. In the first stage itself, the possibleEgoal of such measure intended at imposing restrictions must bedetermined. It ought to be noted that such goal must be legitimate.However, before settling on the aforesaid measure, the authorities mustassess the existence of any alternative mechanism in furtherance of theaforesaid goal. The appropriateness of such measure depends on itsFimplication upon the fundamental rights and the necessity of suchmeasure. It is undeniable from the aforesaid holding that only theleastrestrictive measure can be resorted to by the State, taking intoconsideration the facts and circumstances. Lastly, since the order hasserious implications on the fundamental rights of the affected parties,the same should be supported by sufficient material and should beGamenable to judicial review.

21Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 C.L.J. 174(hereinafter Rivers, “Proportionality”); Martin Luteran, Towards Proportionality as aProportion Between Means and Ends in Cian C. Murphy and Penny Green (eds.), Lawand Outsiders: Norms, Processes and “Othering” in the 21st Century (2011) (hereinafterLuteran, “Towards Proportionality”); see also the contribution of Alison L. Young inHChapter 3 of this volume.

71. The degree of restriction and the scope of the same, bothterritorially and temporally, must stand in relation to what is actuallynecessary to combat an emergent situation.

72. To consider the immediate impact of restrictions upon therealization of the fundamental rights, the decision maker must prioritizethe various factors at stake. Such attribution of relative importance iswhat constitutes proportionality. It ought to be noted that decision whichcurtails fundamental rights without appropriate justification will beclassified as disproportionate.The concept of proportionality requires arestriction to be tailored in accordance with the territorial extent of therestriction, the stage of emergency, nature of urgency, duration of suchrestrictive measure and nature of such restriction. The triangulation of arestriction requires the consideration of appropriateness, necessity andthe least restrictive measure before being imposed.

73. In this context, we need to note that the Petitioners have reliedon recent judgment of the High Court of Hong Kong, in Kwok WingHang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820 tostate that the Hong Kong High Court has utilised the principle to declarethe “anti-mask” law as unconstitutional. In any case, we need notcomment on the law laid down therein, as this Court has independentlypropounded the test of proportionality as applicable in the Indian context.However, we may just point out that the proportionality test needs to beapplied in the context of facts and circumstances, which are very differentin the case at hand.

74. Having observed the law on proportionality and reasonablerestrictions, we need to come back to the application of restrictions onthe freedom of speech over the internet.

75. The respondent-State has vehemently opposed selective accessto internet services based on lack of technology to do the same. If sucha contention is accepted, then the Government would have free passto put 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 theGovernment that the internet could be used to propagate terrorism therebychallenging the sovereignty and integrity of India. This Court would onlyobserve that achievement of peace and tranquillity within the erstwhileState of Jammu and Kashmir requires multifaceted approach without

Aexcessively burdening the freedom of speech. In this regard theGovernment is required to consider various options under Article 19(2)of the Constitution, so that the brunt of exigencies is decimated in amanner which burdens freedom of speech in minimalist manner.

77. Having discussed the general constitutional ambit of theBfundamental rights, proportionality and reasonable restrictions, and aspecific discussion on freedom of expression through the internet and itsrestriction under Article 19(2), we now need to analyse the applicationof the same in the present case.

F. INTERNET SHUTDOWN

C78. Having observed the substantive law concerning the right tointernet and the restrictions that can be imposed on the same, we needto turn our attention to the procedural aspect.

79. It must be noted that although substantive justice under thefundamental rights analysis is important, procedural justice cannot beDsacrificed on the altar of substantive justice. There is need for proceduraljustice in cases relating to restrictions which impact individuals’fundamental rights as was recognized by this Court in the case of ManekaGandhi v. Union of India, (1978) 1 SCC 248 and the K. S.Puttaswamy(Privacy-9J.) case (supra).

E80. The procedural mechanism contemplated for restrictions onthe Internet, is twofold: first is contractual, relating to the contract signedbetween Internet Service Providers and the Government, and the secondis statutory, under the Information Technology Act, 2000, the CriminalProcedure Code, 1973 and the Telegraph Act. In the present case, weFare concerned only with the statutory scheme available, particularly underthe Telegraph Act, and we will therefore confine our discussion mostlyto the same. However, as it would be apposite to distinguish betweenthe different statutory mechanisms, we would touch upon these cursorily.

81. Section 69A of the Information Technology Act, 2000 readwith the Information Technology (Procedures and Safeguards forGBlocking for Access of Information by Public) Rules, 2009 allowsblocking of access to information. This Court, in the Shreya Singhalcase (supra), upheld the constitutional validity of this Section and theRules made thereunder. It is to be noted however, that the field ofoperation of this section is limited in scope.The aim of the section is notHto restrict/block the internet as whole, but only to block access to

particular websites on the internet. Recourse cannot, therefore, be madeby the Government to restrict the internet generally under this section.

82. Prior to 2017, any measure restricting the internet generallyor even shutting down the internet was passed under Section 144, Cr.P.C.,a general provision granting wide powers to the Magistrates specifiedtherein to pass orders in cases of apprehended danger. In 2015, the HighCourt of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State ofGujarat, inWrit Petition (PIL) No. 191 of 2015, considered challengeto an order under Section 144, Cr.P.C. blocking access to mobile internetservices in the State of Gujarat. The High Court of Gujarat, vide orderdated 15.09.2015, upheld the restriction imposed by the Magistrate underSection 144, Cr.P.C. While the Court did not undertake full-fledgeddiscussion of the power of the Magistrate to issue such restrictions underSection 144, Cr.P.C., the Court observed as follows:

“9.…[U]nder Section 144 of the Code, directions may beissued to certain persons who may be the source forextending the facility of internet access. Under thecircumstances, we do not find that the contention raised on behalfof the petitioner that the resort to only Section 69A was availableand exercise of power under Section 144 of the Code wasunavailable, can be accepted.”

(emphasis supplied)

Special Leave Petition was filed against the above judgment ofthe Gujarat High Court, being SLP (C) No. 601 of 2016, whichwasdismissed by this Court in limine on 11.02.2016.

83. The position has changed since 2017, with the passage of theSuspension Rules under Section 7 of the Telegraph Act. With thepromulgation of the Suspension Rules, the States are using the aforesaidRules to restrict telecom services including access to the internet.

84. The Suspension Rules lay down certain safeguards, keepingin mind the fact that an action under the same has large effect on thefundamental rights of citizens. It may be mentioned here that we are notconcerned with the constitutionality of the Suspension Rules, andarguments on the same were not canvassed by either side.As such, weare limiting our discussion to the procedure laid down therein. Rule 2lays down the procedure to be followed for the suspension of telecomservices, and merits reproduction in its entirety:

A“2.(1) Directions to suspend the telecom services shall not beissued except by an order made by the Secretary to theGovernment of India in the Ministry of Home Affairs in the caseof Government of India or by the Secretary to the StateGovernment in-charge of the Home Department in the case of aState Government (hereinafter referred to as the competentBauthority), and in unavoidable circumstances, where obtaining ofprior direction is not feasible, such order may be issued by anofficer, not below the rank of Joint Secretary to the Governmentof India, who has been duly authorised by the Union HomeSecretary 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 orthe State Home Secretary, shall be subject to the confirmationfrom the competent authority within 24 hours of issuing such order:

Provided further that the order of suspension of telecomDservices shall cease to exist in case of failure of receipt ofconfirmation from the competent authority within the said periodof 24 hours.

(2) Any order issued by the competent authority under sub-rule(1) shall contain reasons for such direction and copy of suchEorder shall be forwarded to the concerned Review Committeelatest by next working day.

(3) The directions for suspension issued under sub-rule (1) shallbe conveyed to designated officers of the telegraph authority orto the designated officers of the service providers, who have beenFgranted licenses under section 4 of the said Act, in writing or bysecure electronic communication by an officer not below the rankof Superintendent of Police or of the equivalent rank and mode ofsecure electronic communication and its implementation shall bedetermined by the telegraph authority.

(4) The telegraph authority and service providers shall designateofficers in every licensed service area or State or Union territory,as the case may be, as the nodal officers to receive and handlesuch requisitions for suspension of telecom services.

(5) The Central Government or the State Government, as theHcase may be, shall constitute Review Committee.

(i) The Review Committee to be constituted by the CentralGovernment shall consist of the following, namely:-

(a)Cabinet Secretary-Chairman;

(b)Secretary to the Government of India In-charge, LegalAffairs-Member;

(c)Secretary to the Government, DepartmentofTelecommunications -Member.

(ii) The Review Committee to be constituted by the StateGovernment shall consist of the following, namely:-

(a)Chief Secretary-Chairman;

(b)Secretary Law or Legal Remembrancer In-Charge, Legal Affairs-Member;

(c)Secretary to the State Government (other than the HomeSecretary) -Member.

(6) The Review Committee shall meet within five working daysof issue of directions for suspension of services due to publicemergency or public safety and record its findings whether thedirections issued under sub-rule (1) are in accordance with theprovisions of sub-section (2) of section 5 of the said Act.”

85. Rule 2(1) specifies the competent authority to issue an orderunder the Suspension Rules, who in ordinary circumstances would bethe Secretary to the Ministry of Home Affairs, Government of India, orin the case of the State Government, the Secretary to the HomeDepartment of the State Government. The sub-rule also provides that incertain “unavoidable” circumstances an officer, who is duly authorised,not below the rank of Joint Secretary, may pass an order suspendingservices. The two provisos to Rule 2(1) are extremely relevant herein,creating an internal check as to orders which are passed by an authorisedofficer in “unavoidable” circumstances, as opposed to the ordinarymechanism envisaged, which is the issuing of the order by the competentauthority. The provisos together provide that the orders passed by dulyauthorised officers in “unavoidable” circumstances need to be confirmedby the competent authority within twenty-four hours, failing which, asperthe second proviso, the order of suspension will cease to exist. Theconfirmation of the order by the competent authority is therefore essential,

Afailing which the order passed by duly authorised officer willautomatically lapse by operation of law.

86. Rule 2(2) is also extremely important, as it lays down twinrequirements for orders passed under Rule 2(1). First, it requires thatevery order passed by competent authority under Rule 2(1) must be aBreasoned order. This requirement must be read to extend not only toorders passed by competent authority, but also to those orders passedby an authorised officer which is to be sent for subsequent confirmationto the competent authority. The reasoning of the authorised officer shouldnot only indicate the necessity of the measure but also what the“unavoidable” circumstance was which necessitated his passing the order.CThe purpose of the aforesaid rule is to integrate the proportionality analysiswithin the framework of the Rules.

87. Only in such an event would the requirement of confirmationby the competent authority have any meaning, as it would allow thecompetent authority to properly consider the action taken by theDauthorised officer. Further, the confirmation must not be mere formality,but must indicate independent application of mind by the competentauthority to the order passed by the authorised officer, who must alsotake into account changed circumstances if any, etc. After all, it is thecompetent authority who has been given the power under the SuspensionERules to suspend telecom services, with the authorised officer actingunder the Suspension Rules only due to some exigent circumstances.

88. The second requirement under Rule 2(2) is the forwarding ofthe reasoned order of the competent authority to Review Committeewhich has been set up under the Suspension Rules, within one workingFday. The composition of the Review Committee is provided under Rule2(5), with two distinct review committees contemplated for the Unionand the State, depending on the competent authority which issued theorder under Rule 2(1). Rule 2(6) is the final internal check under theSuspension Rules with respect to the orders issued thereunder. Rule2(6) requires the concerned Review Committee to meet within fiveGworking days of issuance of the order suspending telecom services, andrecord its findings about whether the order issued under the SuspensionRules is in accordance with the provisions of the main statute, viz., Section5(2) of the Telegraph Act.89. This last requirement, of the orders issued under the RulesHbeing in accordance with Section 5(2), Telegraph Act, is very relevant to

understand the circumstances in which the suspension orders may bepassed. Section 5(2), Telegraph Act is as follows:

“5. Power for Government to take possession of licensedtelegraphs and to order interception of messages

xxx

(2) On the occurrence of any public emergency, or in the interestof the public safety, the Central Government or State Governmentor any officer specially authorised in this behalf by the CentralGovernment or State Government may, if satisfied that it isnecessary or expedient so to do in the interests of the sovereigntyand integrity of India, the security of the State, friendly relationswith foreign states or public order or for preventing incitement tothe commission of an offence, for reasons to be recorded in writing,by order, direct that any message or class of messages to or fromany person or class of persons, or relating to any particular subject,brought for transmission by or transmitted or received by anytelegraph, shall not be transmitted, or shall be intercepted ordetained, or shall be disclosed to the Government making the orderor an officer thereof mentioned in the order:

Provided that the press messages intended to be publishedin India of correspondents accredited to the Central Governmentor State Government shall not be intercepted or detained, unlesstheir transmission has been prohibited under this sub-section.”

90. This Court has had prior occasion to interpret Section 5 of theTelegraph Act. In the case of Hukam Chand Shyam Lal v. Union ofIndia, (1976) 2 SCC 128, Four-Judge Bench of this Court interpretedSection 5 of the Telegraph Act and observed as follows:

“13.Section 5(1) if properly construed, does not confer unguidedand unbridled power on the Central Government/StateGovernment/ specially authorised officer to take possession ofany telegraphs. Firstly, the occurrence of “publicemergency” is the sine qua non for the exercise of powerunder this section. As preliminary step to the exercise offurther jurisdiction under this section the Government or theauthority concerned must record its satisfaction as to the existenceof such an emergency. Further, the existence of the emergencywhich is pre-requisite for the exercise of power under this section,

878SUPREME COURT REPORTS

Amust be “public emergency” and not any other kind ofemergency. The expression public emergency has not been definedin the statute, but contours broadly delineating its scope andfeatures are discernible from the section which has to be read asa whole. In sub-section (1) the phrase ‘occurrence of anypublic emergency’ is connected with and is immediatelyBfollowed by the phrase “or in the interests of the publicsafety”. These two phrases appear to take colour from each-other. In the first part of subsection (2) those two phrasesagain occur in association with each other, and the contextfurther clarifies with amplification that “publicCemergency” within the contemplation of this section is onewhich raises problems concerning the interest of the publicsafety, the sovereignty and integrity of India, the securityof the State, friendly relations with foreign States or publicorder or the prevention of incitement to the commission ofan offence.It is in the context of these matters that the appropriateDauthority has to form an opinion with regard to the occurrence ofa public emergency with view to taking further action under thissection...”

(emphasis supplied)

E91. The aforementioned case was followed in People’s Unionfor Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, in thecontext of phone-tapping orders passed under Section 5(2) of theTelegraph Act, wherein this Court observed as follows:

“29. The first step under Section 5(2) of the Act, therefore, is theFoccurrence of any public emergency or the existence of publicsafety interest. Thereafter the competent authority under Section5(2) of the Act is empowered to pass an order of interceptionafter recording its satisfaction that it is necessary or expedient soto do in the interest of (i) sovereignty and integrity of India, (ii)the security of the State, (iii) friendly relations with foreign States,G(iv) public order or (v) for preventing incitement to the commissionof an offence. When any of the five situations mentioned aboveto the satisfaction of the competent authority require then the saidauthority may pass the order for interception of messages byrecording reasons in writing for doing so.”

92. Keeping in mind the wordings of the section, and the abovetwo pronouncements of this Court, what emerges is that the pre-requisitefor an order to be passed under this sub-section, and therefore theSuspension Rules, is the occurrence of “public emergency” or for it tobe “in the interest of public safety”. Although the phrase “publicemergency” has not been defined under the Telegraph Act, it has beenclarified that the meaning of the phrase can be inferred from its usage inconjunction with the phrase “in the interest of public safety” following it.The Hukam Chand Shyam Lal case (supra) further clarifies that thescope of “public emergency” relates to the situations contemplated underthe sub-section pertaining to “sovereignty and integrity of India, thesecurity of the State, friendly relations with foreign states or publicorder or for preventing incitement to the commission of an offence”.

93. The word ‘emergency’ has various connotations. Everydayemergency, needs to be distinguished from the type of emergency whereinevents which involve, or mightinvolve, serious and sometimes widespreadrisk of injury or harm to members of the public or the destruction of, orserious damage to, property. Article 4 of the International Covenant onCivil and Political Rights, notes that ‘[I]n time of public emergencywhich threatens the life of the nation and the existence of which isofficially proclaimed...’. Comparable language has also been used inArticle 15 of the European Convention on Human Rights which says-“In time of war or other public emergency threatening the life of thenation”. We may only point out thatthe ‘public emergency’ is requiredto be of serious nature, and needs to be determined on case to casebasis.

94. The second requirement of Section 5(2) of the Telegraph Actis for the authority to be satisfied that it is necessary or expedient to passthe orders in the interest of the sovereignty and integrity of India, thesecurity of the State, friendly relations with foreign states or public orderor for preventing incitement to the commission of an offence, and mustrecord reasons thereupon.The term ‘necessity’ and ‘expediency’ bringsalong the stages an emergency is going to pass through usually. publicemergency usually would involve different stages and the authoritiesare required to have regards to the stage, before the power can beutilized under the aforesaid rules. The appropriate balancing of the factorsdiffers, when considering the stages of emergency and accordingly, theauthorities are required to triangulate the necessity of imposition of suchrestriction after satisfying the proportionality requirement.

A95. point canvassed by the learned counsel for the Petitioner,Ms. Vrinda Grover, with regard to the interpretation of the proviso toSection 5(2) of the Telegraph Act. The proviso to the section specifiesthat class of messages, i.e., press messages intended to be publishedin India of correspondents accredited to the Central Government or aState Government, will be treated differently from other classes ofBmessages. The learned counsel contended that this separate classificationnecessitates that an order interfering with the press would be incompliance with Section 5(2) of the Telegraph Act only if it specificallystates that the press is also to be restricted. However, the aforesaidinterpretation could not be supported by the petitioner with any judgmentsCof this Court.

96. It must be noted that although the Suspension Rules does notprovide for publication or notification of the orders, settled principle oflaw, and of natural justice, is that an order, particularly one that affectslives, liberty and property of people, must be made available. Any lawDwhich demands compliance of the people requires to be notified directlyand reliably. This is the case regardless of whether the parent statute orrule prescribes the same or not. We are therefore required to read in therequirement of ensuring that all the orders passed under the SuspensionRules are made freely available, through some suitable mechanism. [SeeB.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658]E

97. The above requirement would further the rights of an affectedparty to challenge the orders, if aggrieved. Judicial review of the ordersissued under the Suspension Rules is always available, although noappellate mechanism has been provided, and the same cannot be takenaway or made ineffective. An aggrieved person has the constitutionalFright to challenge the orders made under the Suspension Rules, beforethe High Court under Article 226 of the Constitution or other appropriateforum.

98. We also direct that all the above procedural safeguards, aselucidated by us, need to be mandatorily followed. In this context, thisGCourt in the Hukam Chand Shyam Lal case (supra), observed asfollows:

“18. It is well-settled that where power is required to beexercised by certain authority in certain way, it shouldbe exercised in that manner or not at all, and all other

amodes (sic) of performance are necessarily forbidden. It isall the more necessary to observe this rule where power is of adrastic nature...”

(emphasis supplied)

This applies with even more force considering the large publicimpact on the right to freedom of speech and expression that such abroad-based restriction would have.

99. Lastly, we think it necessary to reiterate that complete broadsuspension of telecom services, be it the Internet or otherwise, being adrastic measure, must be considered by the State only if ‘necessary’and ‘unavoidable’. In furtherance of the same, the State must assessthe existence of an alternate less intrusive remedy. Having said so, wemay note that the aforesaid Suspension Rules have certain gaps, whichare required to be considered by the legislature.

100. One of the gaps which must be highlighted relates to theusage of the word “temporary” in the title of the SuspensionRules.Despite the above, there is no indication of the maximum durationfor which suspension order can be in operation. Keeping in mind therequirements of proportionality expounded in the earlier sectionof thejudgment, we are of the opinion that an order suspending the aforesaidservices indefinitely is impermissible. In this context,it is necessary tolay down some procedural safeguard till the aforesaid deficiency is curedby the legislatureto ensure that the exercise of power under theSuspension Rulesis not disproportionate. We therefore direct that theReview Committee constituted under Rule 2(5) of the Suspension Rulesmust conduct periodic review within seven working days of the previousreview, in terms of the requirements under Rule 2(6). The ReviewCommittee must therefore not only look into the question of whether therestrictions are still in compliance with the requirements of Section 5(2)of the Telegraph Act, but must also look into the question of whether theorders are still proportionate, keeping in mind the constitutionalconsequences of the same. We clarify that looking to the fact that therestrictions contemplated under the Suspension Rules are temporary innature, the same must not be allowed to extend beyond that time periodwhich is necessary.

101. Coming to the orders placed before us regarding restrictionson communication and Internet, there are eight orders that are placed

Abefore us. Four orders have been passed by the Inspector General ofPolice, of the respective zone, while the other four orders are confirmationorders passed by the Principal Secretary to the Government of Jammuand Kashmir, Home Department, confirming the four orders passed bythe Inspector General of Police.

B102. The learned Solicitor General has apprised the Bench thatthe authorities are considering relaxation of the restrictions and in someplaces the restrictions have already been removed. He also pointed thatthe authorities are constantly reviewing the same. In this case, thesubmission of the Solicitor General that there is still possibility of dangerto public safety cannot be ignored, as this Court has not been completelyCapprised about the ground situation by the State. We believe that theauthorities have to pass their orders based on the guidelines provided inthis case afresh. The learned Solicitor General had submitted, on querybeing put to him regarding the feasibility of measure blocking onlysocial media services, that the same could not be done. However, theDState should have attempted to determine the feasibility of such ameasure. As all the orders have not been placed before this Court andthere is no clarity as to which orders are in operation and which havealready been withdrawn, as well as the apprehension raised in relationto the possibility of public order situations, we have accordingly mouldedthe relief in the operative portion.E

G. RESTRICTIONS UNDER SECTION 144 OF CRPC.

“As emergency does not shield the actions of Governmentcompletely; disagreement does not justify destabilisation; thebeacon of rule of law shines always.”

103. The Petitioners have asserted that there were no disturbingfacts which warranted the imposition of restrictions under Section 144,Cr.P.C. on 04.08.2019. They strenuously argued that there had to be acircumstanceon 04.08.2019 showing that there would be an action whichwill likely create obstruction, annoyance or injury to any person or willGlikely cause disturbance of the public tranquillity, and the Governmentcould not have passed such orders in anticipation or on the basis of amere apprehension.

104. In response, the learned Solicitor General, on behalf of theRespondent, argued that the volatile history, overwhelming materialavailable even in the public domain about external aggressions, nefariousH

secessionist activities and the provocative statements given by politicalleaders, created compelling situation which mandated passing of ordersunder Section 144, Cr.P.C.

105. These contentions require us to examine the scope of Section144, Cr.P.C, whichreads as follows:

“144. Power to issue order in urgent cases of nuisance orapprehended danger.—(1) In cases where, in the opinionofa District Magistrate, Sub-divisional Magistrate or any otherExecutive Magistrate specially empowered by the StateGovernment in this behalf, there is sufficient ground forproceeding under this sectionand immediate prevention orspeedy remedy is desirable, such Magistrate may, by writtenorder stating the material facts of the caseand served in themanner provided by Section 134, direct any person to abstain froma certain act or to take certain order with respect to certain propertyin his possession or under his management, if such Magistrateconsiders 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 disturbance of thepublic tranquillity, or riot, or an affray.

(2) An order under this section may, in cases of emergency or incases where the circumstances do not admit of the serving in duetime of notice upon the person against whom the order is directed,be passed ex parte.

(3) An order under this section may be directed to particularindividual, or to persons residing in particular place or area, or tothe public generally when frequenting or visiting particular placeor area.

(4) No order under this section shall remain in force for morethan two months from the making thereof:

Provided that, if the State Government considers it necessary soto do for preventing danger to human life, health or safety or forpreventing riot or any affray, it may, by notification, direct thatan order made by Magistrate under this section shall remain inforce for such further period not exceeding six months from thedate on which the order made by the Magistrate would have, butfor such order, expired, as it may specify in the said notification.

A(5) Any Magistrate may, either on his own motion or on theapplication of any person aggrieved, rescind or alter any ordermade under this section, by himself or any Magistrate subordinateto him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on theBapplication of any person aggrieved, rescind or alter any ordermade by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5) or sub-section (6)is received, the Magistrate, or the State Government, as the casemay be, shall afford to the applicant an early opportunity ofCappearing before him or it, either in person or by pleader andshowing cause against the order; and if the Magistrate or theState Government, as the case may be, rejects the applicationwholly or in part, he or it shall record in writing the reasons forso doing.

D106. Section 144, Cr.P.C. is one of the mechanismsthat enablethe State to maintain public peace. It forms part of the Chapter in theCriminal Procedure Code dealing with “Maintenance of Public Orderand Tranquillity” and is contained in the sub-chapter on “urgent casesof nuisance or apprehended danger”. The structure of the provisionshows that this power can only be invoked in “urgent cases of nuisanceEor apprehended danger”.

107. Section 144, Cr.P.C. enables the State to take preventivemeasures to deal with imminent threats to public peace. It enables theMagistrate to issue mandatory order requiring certain actions to beundertaken, or prohibitory order restraining citizens from doing certainFthings. But it also provides for several safeguards to ensure that thepower is not abused, viz.- prior inquiry before exercising this power,setting out material facts for exercising this power and modifying/rescinding the order when the situation so warrants.

108. The aforesaid safeguards in Section 144, Cr.P.C. are discussedGbelow and deserve close scrutiny.

(a)Prior Inquiry before issuing Order: Before issuing an orderunder Section 144, Cr.P.C., the District Magistrate (or anyauthorised Magistrate) must be of the opinion that:

i.There is sufficient ground for proceeding under thisHprovision i.e. the order is likely to prevent obstruction,

annoyance or injury to any person lawfully employed ordanger to human life, health or safety or disturbance tothe public tranquillity; and

ii. Immediate prevention or speedy remedy is desirable.

The phrase “opinion” suggests that it must be arrived at after acareful inquiry by the Magistrate about the need to exercise theextraordinary power conferred under this provision.

(b)Content of the Order: Once Magistrate arrives at anopinion, he may issue written order either prohibiting aperson from doing something or mandatory order requiringa person to take action with respect to property in hispossession or under his management. But the order cannotbe blanket order. It must set out the “material facts” of thecase. The “material facts” must indicate the reasons whichweighed with the Magistrate to issue anorder under Section144, Cr.P.C.

(c)Communication of the Order:The Order must be servedin the manner provided under Section 134, Cr.P.C., i.e., servedon the person against whom it is made. If such course ofaction is not practicable, it must be notified by proclamationand publication so as to convey the information to personsaffected by the order. Only in case of an emergency or wherethe circumstances are such that notice cannot be served onsuch person, can the order be passed ex parte.

(d)Duration of the Order:As this power can only be exercisedin urgent cases, the statute has incorporated temporalrestrictions—theorder cannot be in force for more than twomonths. However, the State Government can extend an orderissued under Section 144, Cr.P.C. by Magistrate for furtherperiod up to six months if the State Government considers itnecessary for preventing danger to human life, health or safetyor preventing riot.

Although, two-month period outer limit for the Magistrate, anda six-month limit for the State Government, has been providedunder Section 144, Cr.P.C. but the concerned Magistrate and theState Government must take all steps to ensure that the restrictionsare imposed for limited duration.

A(e)Act Judicially while Rescinding or Modification of theOrder: The Magistrate can rescind or alter any order madeby him on his own or on an application by any aggrievedperson. Similarly, the State Government may also on its ownmotion rescind or alter any order passed by it, extending anorder passed under Section 144, Cr.P.C.While consideringBany application for modification or alteration, the Magistrateor the State Government is required to act judicially, i.e.,give personal hearing and give reasons if it rejects theapplication. Care should be taken to dispose of suchapplications expeditiously.C109. Section 144, Cr.P.C. has been the subject matter of severalConstitution Bench rulings and we will briefly examine them. Theconstitutional validity of Section 144, Cr.P.C. under the predecessor ofthe 1898 Act came up for the first time before the Constitution Bench ofthis Court in Babulal Parate case (supra). Repelling the contentionDthat it is an infringement of the fundamental right of assembly, this Courtupheld the provision due to the various safeguards inbuilt under Section144, Cr.P.C. This Court opined that:

a.Section 144, Cr.P.C does not confer arbitrary power on theMagistrate, since it must be preceded by an inquiry.

b.Although Section 144, Cr.P.C confers wide powers, it canonly be exercised in an emergency, and for the purpose ofpreventing obstruction and annoyance or injury to any personlawfully employed. Section 144, Cr.P.C is not an unlimitedpower.

Fc.The Magistrate, while issuing an order, has to state the materialfacts upon which it is based. Since the order states the relevantfacts, the High Court will have relevant material to considerwhether such material is adequate to issue Section 144, Cr.P.Corder. While considering such reasons, due weight must beGgiven to the opinion of the District Magistrate who isresponsible for the maintenance of public peace in the district.

d.This power can be exercised even when the Magistrateapprehends danger. It is not just mere “likelihood” or a“tendency”, but immediate prevention of particular acts tocounteract danger.H

e.Even if certain sections of people residing in the particulararea are disturbing public order, the Magistrate can pass anorder for the entire area as it is difficult for the Magistrate todistinguish between members of the public and the peopleengaging in unlawful activity. However, any affected personcan always apply to the Magistrate under Section 144(4),Cr.P.C. seeking exemption or modification of the order topermit them to carry out any lawful activity.

f.If any person makes an application for modification oralteration of the order, the Magistrate has to conduct judicialproceeding by giving hearing, and give the reasons for thedecision arrived at.

g.The order of the Magistrate under Section144, Cr.P.C issubject to challenge before the High Court. The High Court’srevisionary powers are wide enough to quash an order whichcannot be supported by the materials upon which the order isDsupposed to be based.

h.If any prosecution is launched for non-compliance of an orderissued under Section 144, Cr.P.C., the validity of such an orderunder Section 144, Cr.P.C.can be challenged even at that stage.

110. The validity of the Section 144(6) under the 1898 Act againcame up for consideration before Bench of five Judges in State ofBihar v. Kamla Kant Misra, (1969) 3 SCC 337. The majority judgmentdeclared the latter part of Section 144(6), Cr.P.C as it then existed, whichenabled the State Government to extend an order passed under Section144, Cr.P.C. indefinitely, as unconstitutional, since it did not providelimitations on the duration of the order and no mechanism was providedtherein to make representation against the duration of the order. Underthe 1973 Act, time limit has been prescribed on the maximum durationof the order.

111. Bench of seven Judges in the Madhu Limaye case (supra)was constituted to re-consider the law laid down in Babulal Parate(supra) and the constitutional validity of Section 144, Cr.P.C. This Court,while affirming the constitutional validity of Section 144, Cr.P.C. reiteratedthe safeguards while exercising the power under Section 144, Cr.P.C.The Court highlighted that the power under Section 144, Cr.P.C. mustbe:

(a) exercised in urgent situations to prevent harmful occurrences.Since this power can be exercised absolutely and even exparte, “the emergency must be sudden and the consequencessufficiently grave”

(b) exercised in judicial manner which can withstand judicialBscrutiny.

This Court observed that:

“24. The gist of action under Section 144 is the urgency of thesituation, its efficacy in the likelihood of being able to preventsome harmful occurrences. As it is possible to act absolutely andCeven ex parte. it is obvious that the emergency must besudden and the consequences sufficiently grave. Without itthe exercise of power would have no justification. It is not anordinary power flowing from administration but powerused in judicial manner and which can stand further judicialDscrutiny in the need for the exercise of the power, in itsefficacy and in the extent of its application. There is no generalproposition that an order under Section 144, Criminal ProcedureCode cannot be passed without taking evidence: …

These fundamental facts emerge from the way the occasions forEthe exercise of the power are mentioned. Disturbances of publictranquillity, riots and affray lead to subversion of public order unlessthey are prevented in time. Nuisances dangerous to human life,health or safety have no doubt to be abated and prevented. …..Inso far as the other parts of the section are concerned the key-note of the power is to free society from menace of seriousFdisturbances of grave character. The section is directed againstthose who attempt to prevent the exercise of legal rights by othersor imperil the public safety and health. If that be so the mattermust fall within the restrictions which the Constitution itselfvisualizes as permissible in the interest of public order, or in theGinterest of the general public. We may say, however, thatannoyance must assume sufficiently grave proportions tobring the matter within interests of public order.”

(emphasis supplied)

112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1HSCC 226, this Court, in deciding review petition, elaborated on the

circumstances in which the power under Section 144, Cr.P.C. can beexercised. This Court held as under:

“3. ...It is only where it is not practicable to allow them todo something which is quite legal, having regard to the stateof excited feelings of persons living in an area or frequentinga locality, that any action may be taken under Section 144of the Criminal Procedure Code which may interfere withwhat are, otherwise, completely legal and permissibleconduct and speech.

4.….It may however be noted that the Magistrate is not concernedwith individual rights in performing his duty under Section 144 buthe has to determine what may be reasonably necessary orexpedient in situation of which he is the best judge.

5.… If public peace and tranquillity or other objects mentionedthere are not in danger the Magistrate concerned cannot act underSection 144. He could only direct parties to go to the proper forum.On the other hand, if the public safety, peace, or tranquillity are indanger, it is left to the Magistrate concerned to take proper actionunder Section 144, Cr.P.C.”

(emphasis supplied)

113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC71, this Court held that an order passed under Section 144, Cr.P.C. is anexecutive order which can be questioned in exercise of writ jurisdictionunder Article 226 of the Constitution. The Court reiterated thecircumstances in which the power can be exercised. The Court observedas under:

“27. The entire basis of action under Section 144 is provided bythe urgency of the situation and the power thereunder isintended to be availed of for preventing disorders,obstructions and annoyances with view to secure thepublic weal by maintaining public peace and tranquillity.Preservation of the public peace and tranquillity is theprimary function of the Government and the aforesaid poweris conferred on the executive magistracy enabling it toperform that function effectively during emergent situationsand as such it may become necessary for the ExecutiveMagistrate to override temporarily private rights and in

Agiven situation the power must extend to restrainingindividuals from doing acts perfectly lawful in themselves,for, it is obvious that when there is conflict between the publicinterest and private rights the former must prevail. ….In otherwords, the Magistrate’s action should be directed againstthe wrong-doer rather than the wronged. Furthermore, itBwould not be proper exercise of discretion on the part ofthe Executive Magistrate to interfere with the lawfulexercise of the right by party on consideration that thosewho threaten to interfere constitute large majority and itwould be more convenient for the administration to imposeCrestrictions which would affect only minor section of thecommunity rather than prevent larger section morevociferous and militant.

33. ...It is only in an extremely extraordinary situation, whenother measures are bound to fail, that total prohibition orDsuspension of their rights may be resorted to as lastmeasure.”

(emphasis supplied)

114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr.of Police,Calcutta, (1983) 4 SCC 522, Bench of three JudgesEexpressed doubts about the dicta in the Gulam Abbas case (supra) onthenature of the order under Section 144, Cr.P.C. but reiterated thatrepetitive 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 contemplateFrepetitive orders and in case the situation so warrants stepshave to be taken under other provisions of the law such as Section107 or Section 145 of the Code when individual disputes are raisedand to meet situation such as here, there are provisions to befound in the Police Act. If repetitive orders are made it wouldGclearly amount to abuse of the power conferred by Section144 of the Code.”

(emphasis supplied)

115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, thisCourt emphasised the safeguards under Section 144, Cr.P.C. and theHcircumstances under which such an order can be issued.

116. The learned counsel on behalf of the Petitioners vehementlycontested the power of the Magistrate to pass the aforesaid orders underSection 144, Cr.P.C. as there existed no incumbent situation of emergency.It was argued that such orders passed in mere anticipation or apprehensioncannot be sustained in the eyes of law. As explained above, the powerunder Section 144, Cr.P.C. is preventive power to preserve publicorder. In Babulal Parate case (supra), this Court expressly clarifiedthat this power can be exercised even where there exists an apprehensionof danger. This Court observed as under:

“25. The language of Section 144 is somewhat different. Thetest laid down in the section is not merely “likelihood” or“tendency”. The section says that the Magistrate must be satisfiedthat immediate prevention of particular acts is necessary tocounteract danger to public safety etc. The power conferredby the section is exercisable not only where present dangerexists but is exercisable also when there is an apprehensionof danger.”

(emphasis supplied)

117. In view of the language of the provision and settled law, weare unable to accept the aforesaid contention.

118. Further, learned senior counsel Mr. Kapil Sibal expressed hisconcern that in the future any State could pass such type of blanketrestrictions, for example, to prevent opposition parties from contestingor participating in elections. In this context, it is sufficient to note thatthepower under Section 144, Cr.P.C. cannot be used as tool to preventthe legitimate expression of opinion or grievance or exercise of anydemocratic rights. Our Constitution protects the expression of divergentviews, legitimate expressions and disapproval, and this cannot be thebasis for invocation of Section 144, Cr.P.C. unless there is sufficientmaterial to show that there is likely to be an incitement to violence orthreat to public safety or danger. It ought to be noted that provisions ofSection 144, Cr.P.C. will only be applicable in situation of emergencyand for the purpose of preventing obstruction and annoyance or injury toany 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 powerunder the Section, to allay the apprehensions of the petitioner.

A119. The Petitioners have also contended that ‘law and order’ isof narrower ambit than ‘public order’ and the invocation of ‘law andorder’ would justify narrower set of restrictions under Section 144,Cr.P.C.

120. In this context, it is pertinent for us to emphasize the holdingBrendered by five-Judge Bench of this court in Ram Manohar Lohiav. State of Bihar, AIR 1966 SC 740, wherein this Court emphasised thedifference between “public order” and “law and order” situation. ThisCourt observed as under:

“55. It will thus appear that just as “public order” in the rulings ofCthis Court (earlier cited) was said to comprehend disorders ofless gravity than those affecting “security of State”, “law andorder” also comprehends disorders of less gravity than thoseaffecting “public order”. One has to imagine three concentriccircles. Law and order represents the largest circle withinwhich is the next circle representing public order and theDsmallest circle represents security of State. It is then easy tosee that an act may affect law and order but not public order justas an act may affect public order but not security of the State. Byusing the expression “maintenance of law and order” the DistrictMagistrate was widening his own field of action and was addingEa clause to the Defence of India Rules.”

(emphasis supplied)

121. This Court therein held that mere disturbance of law andorder leading to disorder may not necessarily lead to breach of publicorder. Similarly, the seven-Judge Bench in Madhu Limaye case (supra)Ffurther elucidated as to when and against whom the power under Section144, 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 ofthe situation, its efficacy in the likelihood of being able toGprevent some harmful occurrences. As it is possible to actabsolutely and even ex parte it is obvious that the emergencymust be sudden and the consequences sufficiently grave. Withoutit the exercise of power would have no justification. It is not anordinary power flowing from administration but powerused in judicial manner and which can stand further judicialH

scrutiny in the need for the exercise of the power, in itsefficacy and in the extent of its application…. Disturbancesof public tranquillity, riots and affray lead to subversion ofpublic order unless they are prevented in time. Nuisancesdangerous to human life, health or safety have no doubt tobe abated and prevented. We are, however, not concerned withthis part of the section and the validity of this part need not bedecided here. In so far as the other parts of the section areconcerned the key-note of the power is to free society frommenace of serious disturbances of grave character. The sectionis directed against those who attempt to prevent theexercise of legal rights by others or imperil the public safetyand health. If that be so the matter must fall within therestrictions which the Constitution itself visualizes aspermissible in the interest of public order, or in the interestof the general public. We may say, however, that annoyancemust assume sufficiently grave proportions to bring thematter 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 “public order”and “law and order” situation:

“44. The distinction between “public order” and “law andorder” is fine one, but nevertheless clear. restrictionimposed with “law and order” in mind would be leastintruding into the guaranteed freedomwhile “public order”may qualify for greater degree of restriction since publicorder is matter of even greater social concern.

45. It is keeping this distinction in mind, the legislature, underSection 144 CrPC, has empowered the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate, speciallyempowered in this behalf, to direct any person to abstain fromdoing certain act or to take action as directed, where sufficientground for proceeding under this section exists and immediateprevention and/or speedy remedy is desirable. By virtue ofSection 144-A CrPC, which itself was introduced by Act 25

Aof 2005 [Ed.: The Code of Criminal Procedure(Amendment) Act, 2005.] , the District Magistrate has beenempowered to pass an order prohibiting, in any area withinthe local limits of his jurisdiction, the carrying of arms inany procession or the organising or holding of any massdrill or mass training with arms in any public place, where itBis 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’ andC‘security of State’ are distinct legal standards and the Magistrate musttailor the restrictions depending on the nature of the situation. If twofamilies quarrel over irrigation water, it might breach law and order, butin situation where two communities fight over the same, the situationmight transcend into public order situation. However, it has to be notedthat similar approach cannot be taken to remedy the aforesaid twoDdistinct situations. The Magistrate cannot apply straitjacket formulawithout assessing the gravity of the prevailing circumstances; therestrictions must be proportionate to the situation concerned.

124. Learned senior counsel, Mr. Kapil Sibal also contended thatan order under Section 144, Cr.P.C. cannot be issued against the publicEgenerally andmust be specifically intended against the people or the groupwhich is apprehended to disturb the peace and tranquillity. This Court inthe Madhu Limaye case (supra), has clarified that such an order canbe passed against either particular individual or the public in general.This Court was aware that, at times, it may not be possible to distinguishFbetween the subject of protection under these orders and the individualsagainst whom these prohibitory orders are required to be passed:

“27.… Ordinarily the order would be directed against personfound acting or likely to act in particular way. general ordermay be necessary when the number of persons is so largeGthat distinction between them and the general public cannotbe made without the risks mentioned in the section. Ageneral order is thus justified but if the action is too general,the order may be questioned by appropriate remedies forwhich there is ample provision in the law.”

(emphasis supplied)

125. The counsel on behalf of the Petitioners have argued thatthe validity of the aforesaid restrictions has to be tested on itsreasonableness. The restrictions imposed must be proportionate to theproposed/perceived threat. In the context of restrictions imposedby wayof orders passed under Section 144, Cr.P.C., this Court, in RamlilaMaidan Incident case (supra), held that an onerous duty is cast uponthe concerned Magistrate to first assess the perceived threat and imposethe least invasive restriction possible. The concerned Magistrate is dutybound to ensure that the restrictions should never be allowed tobeexcessive either in nature or in time. The relevant portion is extractedbelow:

“39. There has to be balance and proportionality betweenthe right and restriction on the one hand, and the right andduty, on the other. It will create an imbalance, if undue ordisproportionate emphasis is placed upon the right of citizenwithout considering the significance of the duty. The true sourceof right is duty...

58. Out of the aforestated requirements, the requirements ofexistence of sufficient ground and need for immediate preventionor speedy remedy is of prime significance. In this context, theperception of the officer recording the desired/contemplated satisfaction has to be reasonable, leastinvasive and bona fide. The restraint has to be reasonableand further must be minimal. Such restraint should not beallowed to exceed the constraints of the particular situationeither in nature or in duration. The most onerous duty that iscast upon the empowered officer by the legislature is that theperception of threat to public peace and tranquillity should be realand not quandary, imaginary or mere likely possibility.”

(emphasis supplied)

126. As discussed above, the decisions of this Court in the ModernDental College case (supra) and K.S. Puttaswamy (Aadhaar-5J.)case (supra), which brought the concept of proportionality into the fold,equally apply to an order passed under Section 144, Cr.P.C.

127. The Petitioners also contended that orders passed underSection 144, Cr.P.C., imposing restrictions, cannot be subject matter of

Aprivilege. Moreover, material facts must be recorded in the order itself.On the other hand, the learned Solicitor General argued that theempowered officers were in the best position to know the situation onthe ground and accordingly the aforesaid orders were passed. Thereexisted sufficient speculation on the ground to suggest abrogation ofArticle 370, and the respective Magistrates, being aware of theBcircumstances, imposed the aforesaid restrictions in periodic manner,indicating due application of mind. The learned Solicitor General furtherargued that this Court cannot sit in appeal over the order passed by themagistrate, particularly when there is no imputation of mala fide.

128. To put quietus to the aforesaid issue it is pertinent toCreproduce and rely ona relevant extract from the Ramlila MaidanIncident, In re case (supra):

“56. Moreover, an order under Section 144 CrPC being anorder which has direct consequence of placing arestriction on the right to freedom of speech and expressionDand right to assemble peaceably, should be an order inwriting and based upon material facts of the case. This wouldbe the requirement of law for more than one reason. Firstly, it isan order placing restriction upon the fundamental rightsof citizen and, thus, may adversely affect the interests ofEthe 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 inwriting, referring to the facts and stating the reasons forimposition of such restriction. In Praveen Bhai Thogadia[(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this Court took theFview that the Court, while dealing with such orders, does not actlike an appellate authority over the decision of the officialconcerned.It would interfere only where the order is patentlyillegal and without jurisdiction or with ulterior motive andon extraneous consideration of political victimisation byGthose in power.Normally, 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 inH

general. Such power, if used in casual and cavalier manner, wouldresult in severe illegality. This power should be used responsibly, only asa 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 theappropriate forum and challenge the same. But, the aforesaid means ofjudicial review will stand crippled if the order itself is unreasoned or un-notified. This Court, in the case of Babulal Parate (supra), also stressedupon the requirement of having the order in writing, wherein it is clearlyindicated that opinion formed by the Magistrate was based upon thematerial facts of the case. This Court held as under:

“9. Sub-section (1) confers powers not on the executive but oncertain Magistrates…Under sub-section (1) the Magistratehimself has to form an opinion that there is sufficient groundfor proceeding under this section and immediate preventionor speedy remedy is desirable. Again the sub-sectionrequires the Magistrate to make an order in writing andstate therein the material facts by reason of which he ismaking the order thereunder. The sub-section furtherenumerates the particular activities with regard to which theMagistrate is entitled to place restraints.”

(emphasis supplied)

130. While passing orders under Section 144, Cr.P.C., it isimperative to indicate the material facts necessitating passing of suchorders. Normally, it should be invoked and confined to particular areaor some particular issues. However, in the present case, it is contendedby the Petitioners that the majority of the geographical area of the erstwhileState of Jammu and Kashmir was placed under orders passed underSection 144, Cr.P.C. and the passing of these orders need to be lookedat 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 nationalsecurity and cross border terrorism. Before we part, we need to cautionagainst the excessive utility of the proportionality doctrine in the mattersof national security, sovereignty and integrity.

131. Although, the Respondents submitted that this Court cannotsit in appeal or review the orders passed by the executive, particularlythose pertaining to law and order situation, the scope of judicial reviewwith respect to law and order issues has been settled by this Court. In

AState of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC684, this Court observed, specifically in the context of Section 144, Cr.P.C.,as follows:

“6. Courts should not normally interfere with matters relating tolaw and order which is primarily the domain of the administrativeBauthorities concerned. They are by and large the best to assessand to handle the situation depending upon the peculiar needs andnecessities within their special knowledge. ……Therefore,whenever the authorities concerned in charge of law andorder find that person’s speeches or actions are likely totrigger communal antagonism and hatred resulting inCfissiparous tendencies gaining foothold, undermining andaffecting communal harmony, prohibitory orders neednecessarily to be passed, to effectively avert such untowardhappenings.

7... If they feel that the presence or participation of any person inDthe meeting or congregation would be objectionable, for somepatent or latent reasons as well as the past track record of suchhappenings in other places involving such participants, necessaryprohibitory orders can be passed. Quick decisions and swift aswell as effective action necessitated in such cases may not justifyEor permit the authorities to give prior opportunity or considerationat length of the pros and cons. The imminent need to interveneinstantly, having regard to the sensitivity and perniciously perilousconsequences it may result in if not prevented forthwith, cannotbe lost sight of. The valuable and cherished right of freedomof expression and speech may at times have to be subjectedFto reasonable subordination to social interests, needs andnecessities to preserve the very core of democratic life -preservation of public order and rule of law. At some suchgrave situation at least the decision as to the need and necessityto take prohibitory actions must be left to the discretion of thoseGentrusted with the duty of maintaining law and order, andinterposition of courts unless concrete case of abuse or exerciseof such sweeping powers for extraneous considerations by theauthority concerned or that such authority was shown to act atthe behest of those in power, and interference as matter of

course and as though adjudicating an appeal, will defeat the verypurpose of legislation and legislative intent…”

(emphasis supplied)

132. It is true that we do not sit in appeal, however, the existenceof the power of judicial review is undeniable. We are of the opinion thatit is for the Magistrate and the State to make an informed judgementabout the likely threat to public peace and law and order. The State isbest placed to make an assessment of threat to public peace and tranquillityor law and order. However, the law requires them to state the materialfacts for invoking this power. This will enable judicial scrutiny and averification of whether there are sufficient facts to justify the invocationof this power.

133. In situation where fundamental rights of the citizens arebeing curtailed, the same cannot be done through an arbitrary exerciseof power; rather it should be based on objective facts. The preventive/remedial measures under Section 144, Cr.P.C. should be based on thetype of exigency, extent of territoriality, nature of restriction and theduration of the same. In situation of urgency, the authority is requiredto satisfy itself of such material to base its opinion on for the immediateimposition of restrictions or measures which arepreventive/remedial.However, if the authority is to consider imposition of restrictions over alarger territorial area or fora longer duration, the threshold requirementis relatively higher.

134. An order passed under Section 144, Cr.P.C. should beindicative of proper application of mind, which should be based on thematerial facts and the remedy directed. Proper reasoning links theapplication of mind of the officer concerned, to the controversy involvedand the conclusion reached. Orders passed mechanically or in crypticmanner cannot be said to be orders passed in accordance with law.

135. During the course of hearing, on 26.11.2019, the learnedSolicitor General sought the permission of this Court to produce certainconfidential documents to be perused by this Court. However, he objectedto revealing certain documents to the Petitioners, claiming sensitivityand confidentiality. Learned senior counsel Mr. Kapil Sibal stated thatthe Court could assume the existence of such intelligence inputs andmaterials. In view of such stand, we have not gone into the adequacy of

Athe material placed before this Court; rather, we have presumed existenceof the same.

136. One of the important criteria to test the reasonableness ofsuch measure is to see if the aggrieved person has the right to make arepresentation against such restriction. It is fundamental principle ofBlaw that no party can be deprived of his liberty without being afforded afair, adequate and reasonable opportunity of hearing. Therefore, in asituation where the order is silent on the material facts, the personaggrieved cannot effectively challenge the same. Resultantly, there existsno effective mechanism to judicially review the same. [See State ofBihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the same,Cit is imperative for the State to make such orders public so as to makethe right available under Section 144(5), Cr.P.C. practical reality.

137. One thing to remember is that no mala fide has been allegedby the Petitioners. It was not denied by the Petitioners that the State hasthe power to pass such restrictive order. Additionally, the RespondentsDcontended that the historical background of the State- cross borderterrorism, infiltration of militants, security issues, etc., cannot be forgottenand must be kept in mind while testing the legality of the orders. Further,the Respondent submitted that the orders were passed in theaforementioned context and in the anticipated threat to law and order, toEprevent any loss of life, limb and property. However, these orders do notexplain the aforesaid aspects.138. Although the restrictions have been allegedly removed on27.09.2019, thereby rendering the present exercise into virtuallyacademic one, we cannot ignore non-compliance of law by the State.FAs learned senior counsel Mr. Kapil Sibal submitted,this case is not justabout the past or what has happened in the erstwhile State of Jammuand Kashmir, but also about the future, where this Court has to cautiontheGovernment.Hence, we direct that the authorities must follow theprinciples laid down by this Court and uphold the rule of law.

G139. It is contended by the Petitioners that while theRespondentsstated that there are no prohibitory orders during the dayand there are certain restrictions in certain areas during the night, on theground, the situation is different as the police is still restricting themovement of the people even during the day. If that is so, it is not properand correct for the State to resort to such type of acts. Government, ifH

it thinks that there is threat to the law and order situation or any othersuch requirement, must follow the procedure laid down by law, takinginto consideration the rights of the citizens, and pass appropriate need-based orders.In view of the same, appropriate directions are provided inthe operative part of this judgment.

140. Before parting we summarise the legal position on Section144, Cr.P.C as follows:

i.The power under Section 144, Cr.P.C., being remedial as wellas preventive, is exercisable not only where there existspresent danger, but also when there is an apprehension ofdanger. However, the danger contemplated should be in theCnature of an “emergency” and for the purpose of preventingobstruction and annoyance or injury to any person lawfullyemployed.

ii.The power under Section 144, Cr.P.C cannot be used tosuppress legitimate expression of opinion or grievance orDexercise of any democratic rights.

iii. An order passed under Section 144, Cr.P.C. should state thematerial facts to enable judicial review of the same. The powershould be exercised in bona fide and reasonable manner,and the same should be passed by relying on the materialfacts, indicative of application of mind. This will enable judicialscrutiny of the aforesaid order.

iv. While exercising the power under Section 144, Cr.P.C. theMagistrate is duty bound to balance the rights and restrictionsbased on the principles of proportionality and thereafter applyFthe least intrusive measure.

v.Repetitive orders under Section 144, Cr.P.C. would be anabuse of power.

H. FREEDOM OF THE PRESS

141. The Petitioner in W.P. (C) No. 1031 of 2019 has filed thepetition basing her contention on the following factual premise, asaverred:

13. Writ Petition (Civil) No. 1031 of 2019 was filed on10-08-2019 under Article 32 of the Constitution of India by the

Executive Editor of the newspaper “Kashmir Times”, whichpublishes two editions daily, one from Jammu and another fromSrinagar. The English newspaper, Kashmir Times, was foundedin 1954 as news weekly. It was later converted to dailynewspaper in 1962 and has regularly been in print and circulationever since. Kashmir Times is widely read English newspaper inJammu and Kashmir, and also has significant readership in theneighbouring States of Punjab, Delhi and Himachal Pradesh.

14. On 04-08-2019, sometime during the day, mobile phonenetworks, internet services, and landline phones were alldiscontinued in the Kashmir valley and in some districts of Jammuand Ladakh. No formal orders under which such action was takenby the Respondents were communicated to the affected population,including the residents of the Kashmir Valley. This meant that thepeople of Kashmir were plunged into communication blackholeand an information blackout. The actions of the respondents havehad debilitating and crippling effect on newsgathering, reporting,publication, circulation and information dissemination, and havealso resulted in freezing of web portals and news websites.15. From the morning of 05-08-2019, with heavy militarypresence, barricades and severance of all communication links,the state of Jammu and Kashmir was placed under de factocurfew. At the same time, on 05-08-2019, the Constitution(Application to Jammu and Kashmir) order, 2019, C.O. 272 waspublished in The Gazette of India, vide which under the powersvested by Article 370(1) of the Constitution of India, Article 367(4)was added to the Constitution. Also on 05-08-2019, the Jammuand Kashmir Reorganisation Bill, 2019, was introduced in the RajyaSabha, and passed. On 06-08-2019, the said Bill was passed bythe Lok Sabha. The President’s assent was given to the Bill on09-08-2019. The Gazette Notification, dt. 09-08-2019 states thatthe Jammu and Kashmir Reorganisation Act, 2019, will come intoeffect from 31[st ]October, 2019, and that there shall be new UnionTerritory of Jammu and Kashmir. All of this was carried out whilethe State of Jammu and Kashmir was in lockdown and silencedthrough communication shutdown.

16. In such Circumstances the Kashmir Times’ Srinagar editioncould not be distributed on 05-08-2019 and it could not be published

thereafter from 06-08-2019 to 11-10-2019, as newspaperpublication necessarily requires news gathering by reporterstraveling across the Valley and unhindered interaction with publicand officials. Due to the indiscriminate lockdown-includingcommunication and internet blackout- and severe curbs onmovement enforced by the respondents, the Petitioner wasprevented and hindered from carrying out her profession and work.Even after 11-10-2019 only truncated copy of the newspaper isbeing published because of the severe restrictions in place eventoday (internet services and SMS services are completely shutdown even after 115 days). The new portal/website is frozen tilldate.

142. There is no doubt that the importance of the press is wellestablished under Indian Law. The freedom of the press is requirementin any democratic society for its effective functioning. The first casewhich dealt with the freedom of the press can be traced back to ChanningArnold v. The Emperor, (1914) 16 Bom LR 544, wherein the PrivyCouncil stated that:

“36. The freedom of the journalist is an ordinary part of the freedomof the subject and to whatever length, the subject in general maygo, so also may the journalist, but apart from the statute law hisprivilege is no other and no higher. The range of his assertions, hiscriticisms or his comments is as wide as, and no wider than thatof any other subject.”

143. During the drafting of our Constitution, B. N. Rau, whilecommenting on the amendments by Jaya Prakash Narayan, who hadproposed separate freedom of press, had commented in the followingmanner:

“It is hardly necessary to provide specifically for the freedom ofthe press as freedom of expression provided in sub-clause (a) ofclause (1) of article 13 will include freedom of the press...”

144. Thereafter, many judgments of this Court including BennettColeman v. Union of India, (1972) 2 SCC 788, Indian Express(supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842have expounded on the right of freedom of press and have clearlyenunciated the importance of the aforesaid rights in modern society. Inview of the same, there is no doubt that freedom of the press needs tobe considered herein while dealing with the issue of the case at hand.

A145. From the aforesaid factual averment, we may note that thePetitioner in W.P. (C) No. 1031 of 2019, with respect to the presentissue, does not impugn any specific order of the government restrictingthe freedom of the press or restricting the content of the press. Theallegation of the aforementioned Petitioner is that the cumulative effectof various other restrictions, such as the imposition of Section 144, Cr.P.C.Band restriction on internet and communication, has indirectly affectedthe freedom of the press in the valley.146. There is no doubt that the freedom of the press is valuableand sacred right enshrined under Article 19(1)(a) of the Constitution.This right is required in any modern democracy without which thereCcannot be transfer of information or requisite discussion for democraticsociety. Squarely however, the contention of the Petitioner restson thechilling effects alleged to be produced by the imposition of restrictionsas discussed above.

147. Chilling effect has been utilized in Indian Jurisprudence as aDfairly recent concept. Its presence in the United States of America canbe traced to the decision in Weiman v. Updgraff, 344 U.S. 183. Wemay note that the argument of chilling effect has been utilized in variouscontexts, from being purely an emotive argument to substantivecomponent under the free speech adjudication. The usage of the aforesaidEprinciple is chiefly adopted for impugning an action of the State, whichmay be constitutional, but which imposes great burden on the freespeech. We may note that the argument of chilling effect, if not temperedjudicially, would result in “self-proclaiming instrument”.

148. The principle of chilling effect was utilized initially in limitedFcontext, that person could be restricted from exercising his protectedright due to the ambiguous nature of an overbroad statute. In this regard,the chilling effect was restricted to the analysis of the First Amendmentright. The work of Frederick Schauer provides detailed analysis in hisseminal work on the First Amendment.[22] This analysis was replicated inthe context of privacy and internet usage in regulatory set up by DanielGJ. Solove. Thesepanopticon concerns have been accepted in the case ofK.S. Puttaswamy (Privacy-9J.) (supra).

149. We need to concern ourselves herein as to theoretical questionof drawing lines as to when regulation stops short of impinging upon22 Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the ChillingHEffect (1978).

free speech. regulatory legislation will have direct or indirect impacton various rights of different degrees. Individual rights cannot be viewedas silos, rather they should be viewed in cumulative manner whichmay be affected in different ways. The technical rule of causal linkcannot be made applicable in the case of human rights. Human rightsare an inherent feature of every human and there is no question of theState not providing for these rights. In one sense, the restrictions providedunder Article 19(2) of the Constitution follow utilitarian approachwherein individualism gives way for commonality of benefit, if suchrestrictions are required and demanded by law. In this context, the testof ‘direct impact’ as laid down in A.K Gopalan v. State of Madras,AIR 1950 SC 27, has been subsequently widened in Rustom CavasjeeCooper v. Union of India, 1970 (1) SCC 248, wherein the test of ‘directand inevitable consequence’ was propounded. As this is not case whereina detailed analysis of chilling effectis required for the reasons givenbelow, we leave the question of law open as to the appropriate standardfor establishing causal link in challenge based on chilling effect.

150. The widening of the ‘chilling effect doctrine’ has alwaysbeen viewed with judicial scepticism. At this juncture, we may note thedecision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondentbrought an action against the authorities to injunct them from conductingsurveillance of lawful and peaceful civilian political activity, based on thechilling effect doctrine. The United States Supreme Court, in its majoritydecision, dismissed the plea of the respondent on the ground of lack ofevidence to establish such claim. The Court observed that:

“Allegations of subjective “chill” are not an adequate substitutefor claim of specific present objective harm or threat of specificfuture harm.”

Therefore, to say that the aforesaid restrictions wereunconstitutional because it has chilling effect on the freedom of pressgenerally is to say virtually nothing at all or is saying something that ispurely speculative, unless evidence is brought before the Court to enableit to give clear finding, which has not been placed on record in thepresent case. [refer to Clapper v Amnesty Int’l, USA, 568 U.S. 113(2013)]

151. In this context, one possible test of chilling effect iscomparative harm. In this frame-work, the Court is required to see

Awhether the impugned restrictions, due to their broad-based nature, havehad restrictive effect on similarly placed individuals during the period.It is the contention of the Petitioner that she was not able to publish hernewspaper from 06-08-2019 to 11-10-2019. However, no evidence wasput forth to establish that such other individuals were also restricted inpublishing newspapers in the area. Without such evidence having beenBplaced on record, it would be impossible to distinguish legitimate claimof chilling effect from mere emotive argument for self-serving purpose.On the other hand, the learned Solicitor General has submitted that therewere other newspapers which were running during the aforesaid timeperiod. In view of these facts, and considering that the aforesaid PetitionerChas now resumed publication, we do not deemit fit to indulge more in theissue than to state that responsible Governments are required to respectthe freedom of the press at all times. Journalists are to be accommodatedin reporting and there is no justification for allowing sword of Damoclesto hang over the press indefinitely.

DI. CONCLUSION152. In this view, we issue the following directions:

a.The Respondent State/competent authoritiesare directed topublish all orders in force and any future orders under Section144, Cr.P.C and for suspension of telecom services, includingEinternet, to enable the affected persons to challenge it beforethe High Court or appropriate forum.

b.We declare that the freedom of speech and expression andthe freedom to practice any profession or carry on any trade,business or occupation over the medium of internet enjoysFconstitutional protection under Article 19(1)(a) and Article19(1)(g). The restriction upon such fundamental rights shouldbe 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 isGimpermissible under the Temporary Suspension of TelecomServices (Public Emergency or Public Service) Rules, 2017.Suspension can be utilized for temporary duration only.

d.Any order suspending internet issued under the SuspensionRules, must adhere to the principle of proportionality and mustHnot extend beyond necessary duration.

e. Any order suspending internet under the Suspension Rules issubject to judicial review based on the parameters set outherein.

f.The existing Suspension Rules neither provide for periodicreview nor time limitation for an order issued under theSuspension Rules. Till this gap is filled, we direct that theBReview Committee constituted under Rule 2(5) of theSuspension Rules must conduct periodic review within sevenworking days of the previous review, in terms of therequirements under Rule 2(6).

g. We direct the respondent State/competent authorities to reviewall orders suspending internet services forthwith.

h. Orders not in accordance with the law laid down above, mustbe revoked. Further, in future, if there is necessity to passfresh orders, the law laid down herein must be followed.

i.In any case, the State/concerned authorities are directed toconsider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and otheressential services, in those regions, wherein the internetservices are not likely to be restored immediately.

j.The power under Section 144, Cr.P.C., being remedial as wellas preventive, is exercisable not only where there exists presentdanger, but also when there is an apprehension of danger.However, the danger contemplated should be in the nature ofan “emergency” and for the purpose of preventing obstructionand annoyance or injury to any person lawfully employed.

k. The power under Section 144, Cr.P.C cannot be used tosuppress legitimate expression of opinion or grievance orexercise of any democratic rights.

l.An order passed under Section 144, Cr.P.C. should state thematerial facts to enable judicial review of the same. The powershould be exercised in 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 judicialscrutiny of the aforesaid order.

Am. While exercising the power under Section 144, Cr.P.C., theMagistrate is duty bound to balance the rights and restrictionsbased on the principles of proportionality and thereafter, applythe least intrusive measure.

n.Repetitive orders under Section 144, Cr.P.C. would be an abuseBof power.

o.The Respondent State/competent authorities are directed toreview forthwith the need for continuance of any existingorders passed under Section 144, Cr.P.C in accordance withlaw laid down above.

C153. The Writ Petitions are disposed of in the afore-stated terms.All pending applications are also accordingly disposed of.

Ankit Gyan

Writ Petitions disposed of.