This case analysis has been written by Rishita Gupta and Varsha Agarwal, from Dr Ram Manohar Lohiya National Law University, Lucknow.
The issue starts with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make their safe arrangements to go back. Subsequently, educational institutions and offices were also shut down until further orders. On August 4, 2019 internet services, mobile connectivity and landline were shut down until further orders.
On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of CrPC. Due to this, journalist movements were restricted and this was challenged under Article 19 of the Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation.
In this context, in the Supreme Court, legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution.
W.P. (C) No. 1031 of 2019
- The petition was filed by Ms. Anuradha Bhasin, the executive editor of the Kashmir Times Srinagar Edition. She argued that the internet is absolutely essential for modern press and without which print media has come to “grinding halt”. And due to this, she had been unable to publish the newspaper since August 6. She said that the government failed to give the reason as to necessity to pass the order, as required under Suspension Rules. Further, she contended that the orders were passed on mere apprehension of likelihood of danger to law and order. Moreover, law and order are not the same as public order and neither was it at risk when the orders were passed.
- An intervenor argued that there is need of balancing the measures necessary to maintain national security and curbing terrorism with the rights of citizens which has been taken up by courts of various jurisdictions. The state is justifying by saying the prevalent situation in Jammu and Kashmir and justifying merits rejections, as it will give the state too broad power to impose restrictions in such situations. It will subsume individual rights over social control. He submitted that restrictions imposed are in contravention of Indian National Telecom Policy, 2012. Lastly, he said that restrictions imposed were temporary in nature but are being imposed for more than 100 days, which should be taken into consideration while deciding the matter.
- Another intervenor argued that the necessity to test the order in reference to circumstances on which date the prevailing orders were passed. The necessity to publish order is part of natural justice and it also be made accessible to the public. The state cannot claim any privilege before the court for not producing judgements. Further, he said that the proportionality test was upheld by the court and must be seen that restrictions imposed on fundamental rights of citizens are reasonable or not. He also pointed out that “it is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures”.
W.P. (C) No. 1164 of 2019
- The petition was filed by Mr. Ghulam Nabi Azad (Member of Parliament). He argued that the state cannot claim any exception or privilege before the courts to produce the orders. Further, he said that national emergency can be declared in limited cases while in the present case neither “internal disturbances” or “external aggressions” was there which is required to declare an emergency. To pass order under Section 144 of CrPC, there must be a “law and order” situation which in the present case there is neither any existing law and order issue nor apprehension. Restrictions imposed should be specifically against the group of people apprehended to breach the peace and not the entire state must be bringing to halt. The state should impose the least restrictive measures and must balance the fundamental rights of citizens with the safety of people. And imposing restrictions on the internet, it impacts not only freedom of speech and expression but also freedom to carry any trade, profession or occupation.
W.P. (Crl.) No. 225 of 2019
- Although the petition was withdrawn during arguments, the petitioner submitted the restrictions imposed caused harm even to law abiding citizens which was later on defended by the India’s Attorney General and Solicitor General.
Mr. K.K. Venugopal, learned Attorney General for Union of India
- The Attorney General submitted that background of terrorism in Jammu and Kashmir has to be taken in account. He submitted that before passing the order, “the cognizance of problem in the state” has to be taken into consideration. It will be foolish not to take any preventive measures knowing cross border terrorism and internal militancy. Knowing the background if the government does not take any measure, there can be a huge violence. Similar measures were taken in 2016 also, when a terrorist was killed.
Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir
- The Solicitor General submitted that the first and foremost duty of the State is to protect the citizens. And knowing the history of Jammu and Kashmir, such measures are necessary to be taken. The state is suffering from both physical and digital cross border terrorism. Countered the arguments of petitioners and intervenors, said that they don’t know the exact situation of Jammu and Kashmir and individual movements were never restricted. The restrictions imposed are now gradually being relaxed seeing upon the circumstances of that area.
- The Magistrates of their respective jurisdiction under Section 144 of CrPC passed orders, as they were best to know the actual situation of that area. And now, there is almost 100% relaxation which was earlier imposed on the basis of threat perception. And all televisions, radio channels and newspapers are functioning including from Srinagar where petitioner is situated. There were no restrictions imposed in Ladakh region which shows that there was an application of mind while passing the order and there was no “general clampdown” stated by the petitioners.
- The orders passed under Section 144 of CrPC can be preventive in nature in order to the safety of citizens. He submitted that seeing the situation in Jammu and Kashmir, order passed can be justified under the maintenance of “the security of the state”. It is impossible to segregate the troublemakers from the other citizens countering the arguments that restriction should be imposed on specific individuals.
- The Magistrate was having sufficient knowledge to pass the orders and there was speculation to make a move against the decision passed. Proactive speeches and messages were transmitted and this is all in public domain. The courts have limited jurisdictions when national security is at stake and there are no mala fide allegations made against the officers.
- He submitted that the internet was never restricted in Jammu and Ladakh regions. Through social media, messages can be sent and received to a number of people at ones which can be used to incite violence. Therefore, the use of social media is restricted and the internet can be used to circulate fake news, images and messages. The dark web allows to purchase illegal weapons also and to ban only certain sites on websites on the internet while continuing to access remaining cannot be done as earlier in 2016, it failed.
- Through newspapers, there is only one-way communication and with the internet, there is two-way communication which makes it very easy to spread and therefore same jurisprudence cannot be allowed. Different reasoning is to be applied while imposing the restrictions on both. And lastly, the orders passed followed the procedure in Suspension Rules and are strictly being reviewed.
In line with aforesaid facts and arguments, the following questions of law arise for our consideration:
- Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
- Whether the Government’s action of prohibiting internet access is valid?
- Whether the imposition of restrictions under Section 144, CrPC were valid?
- Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
Court’s decision with reasoning
Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?
The court held that state had to produce the order placing restrictions before the court. It had cited difficulty in determining the legality of restriction imposed when the state refused to produce the order before the court. On the obligation of the state to disclose information, especially in writ petition, the court cited the judgement passed in Ram Jethmalani v. Union of India, that in order to be Article 32 meaningful, the petitioners should be provided with all the relevant information necessary which is needed to articulate the case, and especially when the state has been in possession of information. Article 19 can be interpreted in such a way where right to information is one of the important facets of freedom of speech and expression. Court added that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” This obliges the state to protect the fundamental rights and does not away them in a cavalier manner.
Further said, that state cannot pass any law in a clandestine manner on mere apprehension of danger. To this, the court adds that James Madison stated “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own Governors must arm themselves with the power which knowledge gives”. The court should take proactive orders in producing before court unless there is special privilege or countervailing public interest. But then, this is to be decided by the court that in every case according to the facts and circumstances that public interest or privilege can override the rights of the petitioner and that part of the order can be redacted. In the present case, initially the state privilege but later on produced some orders citing some difficulty in producing all the orders. Hence, this cannot be a valid ground or reason to refuse to produce the order.
Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
The court held that freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a). The court has emphasized on its earlier judgements in which it has protected new medium of expression. In Indian Express v. Union of India, that freedom of print medium is a fundamental right under Article 19(1)(a). In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, it was held that it is the right of citizens to exhibit films which is now protected under Article 19(1)(a). The court in, catena of judgements, held freedom in speech as a fundamental right through various means of expression. Nowadays, the internet is one of the major means to disseminate information and therefore, freedom of speech and expression through the internet is a fundamental right under Article 19(1)(a) and restrictions can be put in accordance with Article 19(2).
The Court does not delve itself in deciding whether the right to access the internet is a fundamental right or not as none of the argued on that. Court said that government can impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose, the court further emphasised on the term ‘reasonable’ which is limited to as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence. The Court in various judgments held that restriction also includes complete restriction but in appropriate cases. In such cases, the restriction imposed complete prohibition, there should be no excessive burden on freedom of speech and the government has to justify why lesser restrictions would be inadequate and lastly complete prohibition is justified is a question of fact which it is to be determined by the court in every case according to the circumstances. To check whether the restrictions are least intrusive is to be determined on balancing and proportionality.
The Court discussed the geopolitical situation that the state has been long plagued by the terrorism. Modern terrorism relies heavily on internet and it is used to raise money, spread their ideologies and recruit people. Solicitor General argued that ‘war on terrorism’ requires such restriction so as to “nip the problem of terrorism in the bud.” And in the past sovereignty and integrity was challenged by the state due to the occurrence of war.
The Court discussed the U.S. First Amendment to the present day that speech that incites violence does not come from freedom of speech. During U.S. civil war Clement L. Vallandigham who had called war ‘wicked, cruel and unnecessary’. Later he was found guilty and was imprisoned during the war. U.S. enacted Espionage Act, 1917 which penalizes anyone who “wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services.” In Abraham v. United States, Justice Holmes said that to punish speech that intends to produce a clear and imminent danger is greater in times of war, as war opens danger which does exist other times. In the case of Brandenburg v. Ohio, the court held that the state cannot punish advocacy of any unlawful conduct unless here it is intended or likely to incite ‘imminent lawless action’.
The Court in CPIO v Subhash Chandra Aggarwal, define proportionality “…that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…” It can be easily summed up in Lord Diplock’s aphorism ‘you must not use a steam hammer to crack a nut, if a nutcracker would do?’ In the case of Modern Dental College & Research Centre v. State of Madhya Pradesh, that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified.” Whenever two fundamental rights are in conflict, they must be balanced so that they “harmoniously coexist with the others.”
The Court in K.S. Puttaswamy held that five sub-components of proportionality must satisfied: (a) legitimate goal (b) the existence of a rational connection (c) necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim (d) necessary to protect them (e) provide sufficient safeguards relating to the storing and protection of centrally stored data.
The Court added that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.” Lastly, the court opposed the state argument that selective internet sites cannot be banned due to lack of technology. As, if it is accepted, then the state has the power to do complete blockage every time and which cannot be accepted. Court would not only observe that while ensuring peace and tranquillity, there is not an excessive burden on freedom of speech and expression.
Whether the Government’s action of prohibiting internet access is valid?
In the said judgement, the Hon’ble Supreme Court turned its attention to the procedural aspect of law and said procedural justice cannot be sacrificed on the altar of substantive justice. The Hon’ble Court observed that the procedural mechanism laid for restrictions on the internet is two-fold: contractual and statutory. In the present case, the latter part is dealt with because it is more relevant to the case at hand. As the name suggests, statutory restrictions imply restrictions under The IT Act,2000; CrPC, 1973, Telegraph Act.
The Court said that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for blocking access of information as it blocks access to particular websites on the internet and not the whole of it.
Prior to 2017, any measure restricting or shutting down the internet was passed under Section 144 of CrPC, granting wide powers to magistrates for passing such orders apprehending danger. But after the passage of Suspension Rules under Section 7 of Telegraph Act, the position has changed. Rule 2 lays down the procedure that’s to be followed for the telecom suspension and merit reproduction in its entirety. A competent authority is specified, under Rule 2(1), who in ordinary circumstances can issue suspension orders. The competent authority is the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. Also, the sub-rule provides that in certain “unavoidable” circumstances, a duly authorized officer not below the rank of Joint Secretary to the Government of India can also pass the orders to restrict the services. However, the order of the duly authorized officer, that there existed “unavoidable” circumstances, has to be approved by the competent authority otherwise the order will cease to exist. Therefore, the approval of the order by the competent authority is necessary.
Furthermore, Rule 2(2) emphasizes that the order passed, either by competent authority or authorized officer, should be reasoned. The reasoning of the latter must also include what were the “unavoidable” circumstances which led to the passing of the order. Secondly, under Rule 2(2) the reasoned order by the competent authority has to be presented to the Review Committee. The composition of the same is provided under Rule 2(5). Rule 2(6) deals with the procedural aspect of the Review Committee.
In Hukam Chand Shyam Lal v. Union of India, the SC interpreted Section 5 of the Telegraph Act. Same interpretation was followed in PUCL v. Union of India. The Court laid that for a suspension order to be passed, there should be “public emergency” or for it to be “in the interest of public safety”. The meaning of the phrase “public emergency” can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it. Also, the SC stated that the definition of “emergency” varies. For example, “Article 4 of the International Covenant on Civil and Political Rights, notes that ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…’. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says “In time of war or other public emergency threatening the life of the nation”. We may only call attention to that the ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis. Another requirement of Section 5(2) is that the authorities should be satisfied that it is necessary or expedient to pass the order.
However, Suspension Rules doesn’t mention that orders should be made public but the Court said that following natural justice, an order that affects the life, liberty and property of the people must be made available. Therefore, orders made under suspension rules must be made freely available to people through some suitable mechanism. An aggrieved person has a constitutional right to challenge the order made under Suspension Rules before the High Court under Section 226.
The Court again reiterated the point that “complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.” [para. 99] also, the Court said that there are certain gaps in the Suspension Rules that need to be fulfilled by the legislature.
The Court also noted that there was no maximum duration period of a suspension order. But considering the principle of proportionality the Court held that indefinite suspension is impermissible. Since there was nothing specified in the Suspension Rules about the maximum duration, the Court asked the Review Committee to determine the duration and ensure its extension to a reasonable period.
There were eight orders placed before the Court. Four were passed by the Inspector General and other four by the Government of J&K. The Court said that any new restrictions have to be passed in accordance with the new order. Since all the orders were not presented before the Court, so the Court accordingly molded the relief in the operative portion.
Whether the imposition of restrictions under Section 144, CrPC were valid?
The petitioners argued that for the imposition of Section 144 of CrPC, the state needed to prove that there existed a circumstance which was likely to create annoyance, obstruction to any person or might cause disturbance to public tranquility. They said restriction can’t be imposed merely on the basis of apprehension. The State argued that “the volatile history, overwhelming material available even in the public domain about external aggression, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders under Section 144.”
The Court said that Section 144 CrPC is one of the mechanisms that enable the State to maintain public peace by taking preventive measures to handle imminent public menaces or threats. But the Section isn’t absolute rather it provides certain safeguards like prior inquiry before the exercising the power, and modifying/rescinding the order when the situation so warrants. The Supreme Court vividly discussed various judicial precedents regarding Section 144 of CrPC.
In State of Bihar v. Kamla Kant Mishra, the Supreme Court held the latter part of Section 144(6) as unconstitutional, because it didn’t provide constraints on the duration of the order. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, the SC highlighted the power under the Section 144 CrPC must be exercised in urgent situations and “the emergency must be sudden and the consequences sufficiently grave”; it should be exercised in a judicial manner which can withstand judicial scrutiny. Apart from this case, there are several other cases in which the Court reiterated the circumstances when Section 144 can be imposed.
In Gulam Abbas v. State of UP, the Court said that an order passed under Section 144 CrPC is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. In Acharya Jagdishwaranand Avadhuta v. Commr. Of Police, Calcutta, the Court reiterated that repetitive powers under Section 144 of CrPC would be an abuse of power.
The Court held that the power cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. The power under the said Section has to be exercised in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
The petitioner contended that ‘law and order’ is of narrower ambit than ‘public order’ and if Section 144 is invoked for ‘law and order’ problem then that would justify ‘public order’ problem as well. In Ram Manohar Lohia v. State of Bihar, the Court distinguished between ‘law and order’ and ‘public order’, former being the larger circle and comprising latter in its ambit. Therefore, the Court held that mere disturbance in law and order may not necessarily lead to a breach of public order.
The Court said that it is up to the magistrate and the State to decide about the likely threat to public peace & law and order. However, they should state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. However, it is imperative that the State should make such an order public because there exists a fundamental principle of law that no person should be deprived of his liberty, but if the restriction is placed on this principle so checking reasonableness of the same is palpable.
To summarize, the Court held that the Section 144 of CrPC can be exercised when there exists present danger as well as apprehension of danger. It can’t be used to suppress legitimate opinion or grievance or exercise of any democratic rights. An order passed under Section 144 should state material facts to enable judicial review of the same. Magistrate is duty bound to apply principle of proportionality on the restrictions and should balance the rights. Repetitive orders would be an abuse of power.
Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
The petitioners contended that restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. The Court rejected this plea. The Court began by elaborating on freedom of press and mentioned the case of Channing Arnold v. The Emperor, a Privy Council judgement which for the first time recognized the freedom of press. Therefore, it is unquestioned that freedom of press is one of the quintessential features of a democracy, which is very well protected by the Constitution.
Here, the petitioners contend that restriction on freedom of press has led to chilling effects on their rights which is protected by the Constitution. However, the Court mentioned that this principle should be used judicially otherwise it may result as a “self-proclaiming instrument”.
Here, the Court said that the petitioners failed to offer any concrete evidence that the restrictions imposed restricted the freedom of press like publication of newspapers and the distribution of the same. Since the petitioner failed to produce evidence therefore the Court couldn’t distinguish whether it was a legitimate claim for chilling effect or mere emotive argument for the purpose of self-fulfillment.
Now, the petitioner has resumed publication so the Court doesn’t want to unnecessarily indulge in the matter and therefore, the Court said that as responsible government, it should take care of the freedom of press at all times and journalists should be accommodated reporting and there shouldn’t be a sword hanging on the Press all the time.
In this case, the court passed a number of judgements which left a ray of hope of betterment in this area. To summarize, the court held that the government cannot claim an exception from producing any order before the court passed under Section 144 of CrPC and whether the government can claim exemption or not is a matter of fact which is to be decided by the court in every case according to the facts and circumstances. Further, the court said that nowadays the internet has become an essential part of everyday life and thereby freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution.
Moreover, the court held that prohibiting internet access is valid but there must be “unavoidable circumstances” otherwise the order passed will cease to exist. There can be imposition of restrictions under Section 144 of CrPC on apprehension of danger but it cannot suppress legitimate opinion of public and repetitive orders of restrictions leads to abusive of power. In the last issue, the court does not indulge in the matter as petitioner has resumed the publication. But, it said that as a responsible government freedom of press should be taken care of.
With regards to Issue 1 the Court directed the State to present all the orders which led to the imposition of Section 144 CrPC and ban on telecom services including internet. We can say that this direction of the Court is justified because such impositions and bans affect the Fundamental Rights of the people. So, the people have the right to know that on which grounds such impositions and bans are applied. The Court also said that the test of Proportionality should be satisfied so that there isn’t any violation of natural justice.
The Court has allowed to impose complete prohibition on freedom of speech and expression which can be misused by the government to suppress any voice which reasonably questions the actions of the government.
The Court said that as per power under Section 144 CrPC says that even if there is an apprehension of danger then also the said Section can be imposed. However, this power can be misused by the government or the State for their benefit, as in they can impose the Section whenever it is suiting their needs or aspirations, without their actual apprehension. So, there should be an authority which can check the power of the Government without being biased and with neutrality over the issue.
Also, this case can be a ray of hope in darkness as the Court held in this case Freedom of Speech and Expression over the internet is a fundamental right so in future the court, in subsequent cases might hold that Right to use the internet is a fundamental right, because the world is a global village and not being able to use internet is clearly depriving individuals of various new opportunities, information and many such things. Internet shutdown puts halt to the quick functioning of various necessities which emerges as a hindrance in the growth of the State.
Therefore, it can be said that with the passage of time, the doctrines held in this case will age well and can be used more judiciously to render justice. To cite Robert Browning’s poem Rabbi Ben Ezra, the doctrines may yet “come grow old with me, the best is yet to be”.
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