Supreme Court on Kashmir Lock-down

ANURADHA BHASIN v. UNION OF INDIA

WRIT PETITION (CIVIL) NO. 1031 OF 2019 decided on January 10,2020

3 Judges Bench

N.V. RAMANA, R. SUBHASH REDDY and B. R. GAVAI, JJ.

Timeline of Facts

DATE

EVENTS

August,2019

The Security Advisory was issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security

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.

05.08.2019

Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the sameday, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Cr.P.C.

05.08.2019

Due to the aforesaid restrictions, the Petitioner claims that the movement of journalists was severely restricted and the Kashmir Times Srinagar Edition could not be distributed.

since 06.08.2019

The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad) approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ for setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession.

Question of law

1. Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Temporary Suspension of

Telecom Services (Public Emergency or Public Service) Rules, 2017 [hereinafter “Suspension Rules”]?

Argument Advanced

Petitioner

Respondent

It was argued that orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the

restrictions pertaining to the Internet and phones (either mobile or telephone were ex facie perverse and suffered from non­application of mind.

Learned counsel submitted that the orders were not in compliance with the procedure prescribed under the Suspension Rules. Further, the orders did not provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules.

Lastly, the learned counsel contended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is not the

same as law and order, and the situation at the time when the orders were passed did not warrant the passing of the orders resulting in restrictions.

Learned senior counsel submitted that Articles 19 and 21 of the Constitution require that any action of the State must demonstrate five essential features: (a) backing of a ‘law’, (b) legitimacy of purpose, (c) rational connection of the act and object, (d) necessity of the action, and (e) when the above four are established, then the test of proportionality.

Learned senior counsel submitted that it is necessary to test the validity of the orders by reference to the facts and circumstances prevailing on the date of passing of the said orders, i.e., 04.08.2019.

Learned senior counsel submitted that the orders that have not been published cannot be accorded the force of law. The necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege.

The Advocates appearing on behalf of the respondents, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in compliance with the procedure in the Suspension Rules,

and are being reviewed strictly in terms of the same.

Held

The Supreme Court reject the aforementioned contention of the Respondent­State and said to produce all orders by which movement of all persons has been restricted since 04.08.2019. Further, production of all orders by way of which communication has been blocked in State of Jammu and Kashmir has also been sought. . Following was reasoning given on this issues:

Regarding obligation of the State to disclose information

The Court said that Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner.

Secondly, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a clandestine manner.

1. 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?

Argument Advanced

Petitioner

Respondent

The learned senior counsel submitted that the restrictions not only impact the right to

free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has been done in India while prohibiting human trafficking and child

pornography websites.

The learned senior counsel submitted that while imposing restrictions, the rights of individuals need to be balanced against the

duty of the State to ensure security. The State must ensure that measures are in place that allows people to continue with their life, such as public transportation for work and schools, to facilitate business, etc.

The Respondent submitted that it is not possible to ban only certain websites/parts of the Internet while allowing access to other parts. Such a measure was earlier attempted in 2017, but it was not successful.

Held

The Court said that, 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).Furthermore, it was said by the court that there is no gainsaying that in today’s world the internet stands as the most utilized and accessible medium for exchange of information. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice.

1. Whether the Government’s action of prohibiting internet access is valid?

The Court held that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only. 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.

1. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?

Argument Advanced

Petitioner

Respondent

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

Learned senior counsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. cannot be passed to the public generally, and must be specifically against the people or the group which is apprehended to disturb the peace. It is necessary for the State to identify the persons causing the problem, and an entire State cannot be brought to a halt. Moreover, he has contended that there was no application of mind before passing those orders.

While submitting that it could be assumed that there was some material available for the purpose of passing the orders under Section 144, Cr.P.C., the question which then

arises is how the State balances the rights of individuals.

The learned Solicitor General submitted that orders passed under Section 144, Cr.P.C. can be preventive in nature, in order to prevent danger to public safety. The Magistrate can

pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be considered keeping in mind the history and the background of the State.

The learned Solicitor General submitted that there were enough facts in the knowledge of the Magistrate to pass the orders under Section 144, Cr.P.C. There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution, and they were aware of the situation on the ground. Provocative speeches and messages were being transmitted. This

information is all available in the public domain.

It was further submitted that the Court does not sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C. and has limited jurisdiction to interfere,

particularly when there are no allegations of mala fide made against the officers and when the question involved is of national security. The level of restriction required is best left

to the officers who are on the ground with the requisite information and knowledge, and the same is not to be replaced by the opinion of the Courts.

Held

The Court said that the State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C. It was held that 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. 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. 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.

1. Whether the freedom of press of the Petitioner was violated due to the restrictions?

Held

The Court noticed that no evidence was put forth to establish that such other individuals were restricted in publishing newspapers in the area and 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.

Share this:

1. Click to share on Twitter (Opens in new window)

2. Click to share on Facebook (Opens in new window)

3. Click to share on LinkedIn (Opens in new window)

4. Click to share on Telegram (Opens in new window)

5. Click to share on WhatsApp (Opens in new window)

6. Click to email this to a friend (Opens in new window)

7.