“While the mountains of Himalayas spell tranquillity, yet blood is shed every day.”
Supreme Court: In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.
“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”
Stating that it’s limited scope, in the matter wherein the two sides have shown two different pictures which are diametrically opposite and factually irreconcilable, was to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, the Court said,
“It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”
Fundamental rights under part III and restrictions thereof
- Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.
- Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).
Right to access internet as a fundamental right
The Court refused to offer views on the said issue as none of the counsels had argued for declaring the right to access the internet as a fundamental right.
Publication of orders on Internet shut down
The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.
“Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.”
It further added 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.
Restrictions under Section 144 CrPC
“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”
Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.
“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two distinct situations.”
Freedom of press
When Anuradha Bhasin argued before the Court that she was not able to publish her newspaper Kashmir Times from 06082019 to 11102019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.
“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a selfserving purpose.”
The Court, however, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.
- The J&K State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
- Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
- An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
- Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
- The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). Hence, J&K State/competent authorities must review all orders suspending internet services forthwith.
- Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
- In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited ebanking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
- The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Hence, the power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
- An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
- While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
- Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
- The J&K State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.
The 3-judge bench had reserved the judgment on November 27, 2019 on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.
The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.
On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.
[Anuradha Bhasin v. Union of India, WRIT PETITION (CIVIL) NO. 1031 OF 2, decided on 10.01.2020]