IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1031 OF 2019    

ANURADHA BHASIN            …PETITIONER

VERSUS

UNION OF INDIA AND ORS.    …RESPONDENT(S)

And

WRIT PETITION (CIVIL) NO. 1164 OF 2019    

GHULAM NABI AZAD             …PETITIONER

VERSUS

UNION OF INDIA AND ANR.                   …RESPONDENT(S)

JUDGMENT    

TABLE OF CONTENTS    

Introduction A

Contentions B

Issues C

Production of Orders D

Fundamental Rights under Part III and restrictions thereof

E

Internet Shutdown F

Restrictions under Section 144, Cr.P.C. G

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REPORTABLE

Freedom of the Press H

Conclusion I

N. V. RAMANA, J.    

A. INTRODUCTION    

“It was the best of times, it was the worst of times,  

it was the age of wisdom, it was the age of foolishness,  

it was the epoch of belief, it was the epoch of incredulity,  

it was the season of Light, it was the season of Darkness,  

it was the spring of hope, it was the winter of despair,  

we had everything before us, we had nothing before us,

we were all going direct to Heaven, we were all going direct the other way­  

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

­Charles Dickens in A Tale of Two Cities

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1. Although cherished in our heart as a “Paradise on Earth”, the

history of this beautiful land is etched with violence and

militancy. While the mountains of  Himalayas spell tranquillity,

yet blood is shed every day. In this land of inherent

contradictions, these petitions add to the list, wherein two sides

have shown two different pictures which are diametrically

opposite and factually irreconcilable. In this context, this Court’s

job is compounded by the magnitude of the task before it. It goes

without saying  that this  Court will  not  delve into  the political

propriety of the decision taken herein, which is best left for

democratic forces to act on.  Our limited scope is to strike a

balance between the  liberty and security concerns so  that  the

right to life is secured and enjoyed in the best possible manner.

2. Liberty and security have always been at loggerheads. The

question before us, simply put, is what do we need more, liberty

or security?  Although  the choice is seemingly challenging,  we

need to clear ourselves from the platitude of rhetoric and provide

a meaningful answer so that every citizen has adequate security

and sufficient liberty.  The  pendulum of  preference  should  not

swing in either extreme direction so that one preference

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compromises the other. It is not our forte to answer whether it is

better to be free than secure or be secure rather than free.

However, we are here only to ensure that citizens are provided all

the rights and liberty to the highest extent in a given situation

while ensuring security at the same time.  

3. The genesis of the issue starts with the Security Advisory issued

by the Civil Secretariat, Home Department, Government of

Jammu and Kashmir,  advising the tourists and the Amarnath

Yatris to curtail their stay and make arrangements for their

return in the interest of safety and security. Subsequently,

educational institutions and offices were ordered to remain shut

until further orders. On 04.08.2019, mobile phone networks,

internet services,  landline connectivity were all discontinued in

the valley, with restrictions on movement also being imposed in

some areas.

4. On 05.08.2019, Constitutional Order 272 was issued by the

President, applying all provisions of the Constitution of India to

the  State of Jammu and  Kashmir, and  modifying  Article  367

(Interpretation) in its application to the State of Jammu  and

Kashmir. In light of the prevailing circumstances, on the same

day, the District Magistrates, apprehending breach of peace and

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tranquillity, imposed restrictions on movement and public

gatherings by virtue of powers vested under Section 144, Cr.P.C.

Due to the aforesaid restrictions, the Petitioner in W.P. (C) No.

1031 of 2019 claims that the movement of journalists was

severely restricted and on 05.08.2019, the Kashmir Times

Srinagar  Edition could not be distributed. The Petitioner  has

submitted that since 06.08.2019, she has been unable to publish

the Srinagar edition of Kashmir Times pursuant to the aforesaid

restrictions.

5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and

Mr. Ghulam Nabi Azad) approached this Court under Article 32

of the Constitution seeking issuance of an appropriate writ for

setting aside or quashing any and all order(s), notification(s),

direction(s) and/or circular(s) issued by the Respondents under

which any/all modes of communication including internet,

mobile and fixed line telecommunication services have been shut

down or suspended or in any way made inaccessible or

unavailable  in any locality.  Further, the Petitioners sought the

issuance of an appropriate writ or direction directing

Respondents to immediately restore all modes of communication

including mobile, internet and landline services throughout

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Jammu and Kashmir in order to provide an enabling

environment for the media to practice its profession. Moreover,

the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to pass

any appropriate  writ  or  direction directing  the  Respondents  to

take  necessary steps for ensuring free  and safe  movement of

reporters and journalists and other media personnel. Lastly, she

also pleaded for the framing of guidelines ensuring that the rights

and means of media personnel to report and publish news is not

unreasonably curtailed.

6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164

of 2019), alleges that he was stopped from travelling to his

constituency in Jammu and Kashmir. In this context, he alleges

that due to the aforesaid restrictions, he is not able to

communicate with the people of his constituency.  

7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad), was

listed before a Co­ordinate Bench of this Court on 16.09.2019,

the following order was passed:

“Issue notice. We permit the petitioner to go to Srinagar and visit the following districts, subject to restrictions, if any:­ (i) Srinagar, (ii) Anantnag, (iii) Baramulla and (iv) Jammu.  

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The petitioner has undertaken before the Court on his own volition that he will not indulge in any political rally or political activity during his visit. The visit  will solely  be concerned  with making an assessment of the impact of the present situation on the life of the daily wage earners, if any.  So far as prayers (2) and (3) of the writ petition are concerned, the State as well as, the Union of India will respond within two weeks hence.”  

8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019, the

matter was ordered to be tagged along with W.P. (C) No. 1013 of

2019 (five­Judge Bench) and was later de­tagged. On 16.09.2019,

a Co­ordinate Bench of this Court ordered the following: “The State  of  Jammu & Kashmir,  keeping  in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.”  

When the said writ petition was listed before this Bench on

01.10.2019, in light of expediency, this Bench directed that no

further intervention applications shall be entertained. However,

liberty  was granted  to file  additional  documents in  support  of

applications for intervention. When the matter came up for

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hearing on the next date on 16.10.2019, the following order was

passed:

“When these matters came up for hearing today, learned Solicitor General appearing for the Union of India made a  submission that after filing the counter affidavit in these matters, certain further developments have taken place and some of the restrictions imposed  have  been  relaxed,  particularly  with reference to mobile connectivity as well as the landlines services etc. and, therefore, he wants to file another additional affidavit indicating the steps taken by the Government about relaxation of some restrictions. He also made a request to accommodate him for a  week only. During the course of hearing, we are informed by the learned  

Senior counsel appearing for the petitioners that the orders which are issued by the authorities relating to the restrictions imposed have not been provided to them so far.  

When we asked the  learned Solicitor General about the non­ supply of orders issued by the authorities relating to the restrictions imposed, particularly with respect to the cell phone services as well as Section 144 proceedings, he claims privilege over those orders. He, however, states that those orders can be produced before this Court.  

However, if for any reason, learned  Solicitor General does not want to give a copy of those orders to the petitioners, we request him to file an affidavit indicating the reasons for claiming such privilege.”  

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On 24.10.2019, after the aforesaid orders were placed on record

and pleadings were complete, the matter was listed for final

disposal on 05.11.2019. Taking into account the concerns

expressed by the parties, we extensively heard the counsel for

both sides, as well as all the Intervenors on 05.11.2019,

06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019,

26.11.2019 and 27.11.2019, and considered all the submissions

made and documents placed before us.

B. CONTENTIONS    

Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No.

1031 of 2019

 It was contended that the petitioner, being executive editor of one of the major newspapers, was not able to function post 05.08.2019, due to various restrictions imposed on the press.

 Print media came to a grinding halt due to non­availability of internet services, which in her view, is absolutely essential for the modern press.

 Curtailment of the internet, is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality.

 The procedure that is to be followed for restricting Internet services is provided  under the Temporary  Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 [hereinafter “Suspension  Rules”], which were notified under the Telegraph Act. The Suspension Rules

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indicate that the restriction imposed was contemplated to be of a temporary nature.

 The orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the restrictions  pertaining to the Internet  and  phones (either mobile or telephone were ex facie perverse and suffered from non­application of mind.  

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

 Lastly, the learned counsel contended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is not the same as law and order, and the situation at the time when the orders were passed did not warrant the passing of the orders resulting in restrictions.

Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. (C)

No. 1164 of 2019

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

 It was submitted that the conduct of the State, in producing documents and status reports during argumentation,  was improper, as it did not allow the Petitioners with sufficient opportunity to rebut the same.

 Learned senior counsel submitted that the Union of India can declare an emergency only in certain limited situations. Neither any ‘internal disturbance’ nor any ‘external aggression’ has been shown in the present case for the imposition of restrictions which are akin to the declaration of Emergency.

 With respect to the orders restricting movement passed under Section 144, Cr.P.C., the learned senior counsel contended that such an order is made to deal with a ‘law

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and  order’ situation,  but the orders  do  not indicate any existing law and order issue, or apprehension thereof.

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

 While submitting that it could be assumed that there was some material available for the purpose of passing the orders under Section 144, Cr.P.C., the question which then arises is how the State balances the rights of individuals.

 The learned senior counsel, with respect to the communications’ restrictions, submitted that the State had not indicated as to the necessity to block landline services. He further submitted that the communications/Internet restrictions which were imposed under the Indian Telegraph Act, 1885 [hereinafter “Telegraph Act”] needs to follow the provisions of  Section 5 of the Telegraph Act, in  line with Article 19 of the  Constitution.  While there can  be some restrictions, there  can  be  no  blanket  orders,  as it  would amount to a complete ban. Instead, a distinction should be drawn while imposing restrictions on social media/mass communication and the general internet. The least restrictive option must be put in place, and the State should have taken preventive  or  protective  measures.  Ultimately, the State needs to balance the safety of the people with their lawful exercise of their fundamental rights.

 On internet restrictions, the learned senior counsel submitted that such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social  media websites like Facebook and Whatsapp, should and could have been passed, as has been done in India while prohibiting human trafficking and child pornography websites. The learned senior counsel pointed to orders passed in Bihar, and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same could have been followed in this case as well.

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 Indicating that the State can impose restrictions, the learned senior counsel focussed on the question of the “least restrictive measure” that can be passed. The learned senior counsel submitted that while imposing restrictions, the rights of individuals  need to be balanced against the duty of the State to ensure security. The State must ensure that measures are in place that allows people to continue with their life, such as public transportation for work and schools, to facilitate business, etc.

Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No.

139141 of 2019 in W.P. (C) No. 1031 of 2019

 The learned senior counsel emphasized on the term “reasonable”,  as used  in Article  19(2)  of the Constitution, and submitted that the restrictions on the freedom of speech should be reasonable as mandated under Article 19 of the Constitution. These restrictions need to be tested on the anvil of the test of proportionality.

 Learned senior counsel submitted that Section 144, Cr.P.C. orders should be based on some objective material and not merely on conjectures.

Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A.

No. 139555 in W.P. (C) No. 1031 of 2019

 Learned senior counsel attempted to highlight that the issue of balancing the measures necessary for ensuring national security or curbing terrorism, with the rights of the citizens, is an endeavour that is not unique, and has been undertaken by Courts in various jurisdictions. Learned senior counsel relied on the judgment of the Supreme Court of Israel concerning the  Legality of the General Security Service's Interrogation Methods  in  Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999)  relating  to  the question of  whether torture during interrogation of an alleged terrorist was permissible. In that

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case, the Israeli Supreme Court held that such acts were unconstitutional, and could not be justified in light of the freedoms and liberties afforded to the citizens of Israel.

 Learned senior counsel drew parallels between the situation faced by the Israeli Supreme Court in the abovementioned case, and that before this Court, wherein, according to the learned senior counsel, the State is attempting to justify the restrictions due to the circumstances prevailing in the State of Jammu and Kashmir. The learned senior counsel submitted that such  a justification  merits rejection  as it would amount to granting too much power to the State to impose broad restrictions on fundamental rights in varied situations. It would amount to individual liberty being subsumed by social control.

 The learned senior counsel emphasized on the seriousness of the present matter, stating that such restrictions on the fundamental rights is the reason for the placement of Article 32 of the Constitution in Part  III,  as a fundamental right which allows for the enforcement of the other fundamental rights. He referred to the Constituent Assembly debates to highlight the import of Article 32, as contemplated by the Members of the Constituent Assembly.

 The learned senior counsel also placed before this Court the Government of India  National Telecom Policy, 2012, and submitted that the wide restrictions imposed by the State are in contravention of the aforementioned policy. He submitted that the freedom of speech and expression is meant to allow people to discuss the burning topic of the day, including the abrogation of Article 370 of the Constitution.

 Lastly, the learned senior counsel emphasized that the restrictions that were imposed are meant to be temporary in nature,  have lasted for  more than  100  days,  which fact should be taken into account by this Court while deciding the matter.

Ms. Meenakshi Arora, Senior Counsel for the Intervenor in

I.A. No. 140276 in      W.P. (C) No. 1031 of 2019

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

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

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

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

 On the point of proportionality, the learned senior counsel submitted that the test of proportionality was upheld by this Court in the case of K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy­ 9J.)”)  and therefore the proportionality of a measure must be determined while looking at the restrictions being imposed by the State on the fundamental rights of citizens. The learned senior counsel pointed out that it is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.

Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.

(Crl.) No. 225 of 2019

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 Although this Writ Petition was withdrawn during arguments, the learned senior counsel wished to make certain submissions regarding the issue at hand. The learned senior counsel submitted on behalf of the Petitioner that although he and his family were law abiding citizens, yet they are suffering the effects of the restrictions. Citing the House of Lords judgment of  Liversidge v. Anderson, (1941) 3 All ER 338 the learned senior counsel submitted that it was the dissent by Lord Atkin, upholding the fundamental rights of the citizens of the United Kingdom, which is now the law of the land.

Mr. K. K. Venugopal, Learned Attorney General for the Union

of India

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

 According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism and internal militancy, it would have been foolish to have not taken any preventive measures in the circumstances. The necessity of the orders under Section 144, Cr.P.C. are apparent from the background  facts  and circumstances,  when  there can be huge violence if the Government did not take these kinds of measures. In fact, similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State.

Mr. Tushar Mehta, Solicitor General for the State of Jammu

and Kashmir

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 The learned Solicitor General submitted that the first and foremost duty of the State is to ensure security and protect the citizens­ their lives, limbs and property. He further submitted that the facts relied on by the Petitioners and the Intervenors were incorrect, as they did not have the correct information about the factual position on the ground in the State of Jammu and Kashmir.

 The learned Solicitor General submitted that the historical background of the State of Jammu and Kashmir is necessary to be looked at to understand the measures taken by the State. The State has been a victim of both physical and digital cross border terrorism.

 The abrogation of Article 370 of the Constitution on 05.08.2019 was a historic step, which resulted not in the taking  away  of the rights of the citizens  of  Jammu and Kashmir, but conferment of rights upon them which they never  had.  Now, with  the  abrogation,  106 people friendly laws have  become applicable to  the  State  of  Jammu and Kashmir.

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

 On the orders passed by the Magistrates under Section 144, Cr.P.C., in their respective jurisdictional areas, the learned Solicitor General  submitted that they were best placed to know the situation on the ground, and then took their respective decisions accordingly. Currently, there is nearly hundred percent relaxation of restrictions. Restrictions were being relaxed on the basis of the threat perception. Restrictions were never imposed in the Ladakh region. This fact shows that there was application of mind while passing the orders by the officers on the ground, and that there was no general clampdown, as is being suggested by the Petitioners.

 Further, the learned  Solicitor  General  pointed to various figures to indicate that people were leading their ordinary lives in the State. He submitted that all newspapers,

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television and radio channels are functioning, including from Srinagar, where the Petitioner in W.P. (C) No. 1031 of 2019 is situated. The learned Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the populace.

 The learned Solicitor General submitted that orders passed under Section 144, Cr.P.C. can be preventive in nature, in order to prevent danger to public safety. The Magistrate can pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be considered keeping in mind the history and the background of the State.

 Relying on Babulal Parate v. State of Bombay, AIR 1960 SC 51, and Madhu Limaye v. Sub­Divisional Magistrate, Monghgyr, (1970) 3 SCC 746, the learned Solicitor General submitted  that the  situation  in the  State  of  Jammu and Kashmir was such that the orders could be justified in view of maintenance of the “security of the State”. Regarding the Petitioners’ submission that the restrictions could have been imposed on specific individuals, the learned Solicitor General submitted that it was impossible to segregate, and control, the troublemakers from the ordinary citizens.

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

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

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 With respect to the communications and internet shutdown, the  learned Solicitor General  submitted  that internet  was never restricted in the Jammu and Ladakh regions. Further, he  submitted that  social  media,  which  allowed  people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. The purpose of the  limited and restricted use of internet is to ensure that the situation on the ground would not be aggravated by  targeted messages  from outside the country. Further, the internet allows for the transmission of false news or fake images, which are then used to spread violence. The dark web allows individuals to purchase weapons and illegal substances easily.

 The learned Solicitor General submitted that the jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed one­way communication, the internet makes two­way communication by which spreading of messages are very easy. The different context should be kept in mind by the Court while dealing with the restrictions with respect to the two media.

 While referring to various photographs, tweets and messages of political leaders of Kashmir, he stated that these statements are highly misleading, abrasive and detrimental to the integrity and sovereignty of India.

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

 Lastly, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in compliance  with the  procedure in the  Suspension  Rules, and are being reviewed strictly in terms of the same.

9. Some of the intervenors have supported the submissions made

by the learned Attorney General and the Solicitor General, and

indicated that the restrictions were necessary and in compliance

with the law. They have also submitted that normalcy is

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returning in the  State of Jammu and  Kashmir, and that the

present petitions are not maintainable.

C. ISSUES

10. In line with aforesaid facts and arguments, the following

questions of law arise for our consideration: I. Whether the Government can claim exemption from

producing all the orders passed under Section 144, Cr.P.C.

and other orders under the Suspension Rules? II. Whether the freedom of speech and expression and

freedom to practise any profession, or to carry on any

occupation, trade or business over the Internet is a part of

the fundamental rights under Part III of the Constitution? III. Whether the  Government’s  action  of  prohibiting internet

access is valid? IV. Whether the imposition of restrictions under Section 144,

Cr.P.C. were valid? V. Whether the freedom of press of the Petitioner in W.P. (C)

No. 1031 of 2019 was violated due to the restrictions?

D.  PRODUCTION OF ORDERS

11. The present petitions, their context and conduct of the parties,

have  placed  this  Court in  a  peculiar  situation.  We have  been

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asked to go into the question of the validity of orders, restricting

movement and communication, passed  in the State of  Jammu

and Kashmir by various authorities, however, the orders are not

before us. The Petitioners and Intervenors claim that the orders

were not available, which is why they could not place them on

record.  

12. At the same time, while the non­availability of  orders was not

denied by the Respondent­State, they did not produce the said

orders. In fact, when this Court by order dated 16.10.2019 asked

them to produce the orders, the Respondent­State placed on

record only sample orders, citing difficulty in producing the

numerous orders which were being withdrawn and modified on a

day­to­day  basis. The  Respondent­State also claimed that the

plea to produce orders by the Petitioners was an expansion of the

scope of the present petitions.

13. At the outset, a perusal of the prayers in the Writ Petitions before

us should be sufficient to reject the aforementioned contention of

the Respondent­State. In W.P. (C) No. 1164 of 2019 and I.A no.

157139 in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 of 2019,

a prayer has been made to  issue a writ  of  mandamus or any

other  writ directing  Respondent Nos. 1 and 2 to produce all

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orders  by  which  movement  of all persons  has  been restricted

since  04.08.2019.  Further,  production of  all orders  by  way of

which communication has been blocked in State of Jammu and

Kashmir has also been sought.

14. On the obligation of the State to disclose information, particularly

in a writ proceeding, this Court in Ram Jethmalani v. Union of

India, (2011) 8 SCC 1, observed as follows:

“75.  In order that the right guaranteed by clause (1) of Article 32 be meaningful, and particularly because such  petitions seek the protection of fundamental rights, it is imperative that in such proceedings the petitioners are not denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State.”

(emphasis supplied)

15. We may note that there are two separate types of reasoning that

mandates  us to  order  production of the  orders  passed by  the

authorities in this case.  First, Article 19 of the Constitution has

been interpreted to mandate right to information as an important

facet of the right to freedom of speech and expression. A

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democracy, which is sworn to transparency and accountability,

necessarily mandates the production of orders as it is the right of

an individual to know. Moreover, fundamental rights itself

connote a qualitative requirement wherein the State has to act in

a responsible manner to uphold Part III of the Constitution and

not to take away these rights in an implied fashion or in casual

and cavalier manner.  

16. Second, there is no dispute that democracy entails free flow of

information. There is not only a normative expectation under the

Constitution, but also a requirement under natural law, that no

law should be passed in a clandestine manner. As Lon L. Fuller

suggests in his celebrated article “there can be no greater legal

monstrosity than a secret statute”.1  In this regard, Jeremy

Bentham spoke about open justice as the “keenest spur to

exertion”. In the same context, James Madison stated “a popular

government, without popular information, or the means of

acquiring it, is but a prologue to a farce or a tragedy; or perhaps

both. Knowledge will forever govern the ignorance and a people

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

22

who mean to be their own Governors must arm themselves with

the power which knowledge gives”.

17. As a general principle, on a challenge being made regarding the

curtailment of fundamental rights as a result of any order passed

or action taken by the State which is not easily available,  the

State should take a proactive approach in ensuring that all the

relevant orders are placed before the Court, unless there is some

specific ground of privilege or countervailing public interest to be

balanced,  which must  be specifically claimed by the  State  on

affidavit. In such cases, the Court could determine whether, in

the facts and circumstances, the privilege or public interest claim

of the State overrides the interests of the Petitioner. Such portion

of the order can be redacted or such material can be claimed as

privileged, if the State justifies such redaction on the grounds, as

allowed under the law.

18. In the present case, while the State initially claimed privilege, it

subsequently  dropped the  claim and  produced  certain  sample

orders, citing  difficulty in  producing  all the  orders  before this

Court. In our opinion, this is not a valid ground to refuse

production of orders before the Court.  

23

E. FUNDAMENTAL RIGHTS UNDER PART III AND RESTRICTIONS    

THEREOF    

19. The petitioners have contended that the  impugned restrictions

have affected the freedom of movement, freedom of speech and

expression and right to free trade and avocation. In this context,

we have to first examine the nature of the fundamental rights

provided under the Constitution.

20. The nature of fundamental rights under Part III of the

Constitution is well settled. The fundamental rights are

prescribed as a negative list, so that “no person could be denied

such right until the Constitution itself prescribes such

limitations”.  The only exception to the aforesaid formulation is

Article  21A of the  Constitution,  which is  a  positive right that

requires an active effort by the concerned government to ensure

that the right to education is provided to all children up to the

age of 16 years.  

21. The positive prescription of freedom of expression will result in

different consequences which our own Constitution has not

entered into. Having different social and economic backgrounds

and existing on a different scale of development, the human

24

rights enshrined therein have taken a different role and purpose.

The framers of the Indian Constitution were aware of the

situation  of India, including the socio­economic costs  of such

proactive duty, and thereafter took an informed decision to

restrict the application of fundamental rights in a negative

manner. This crucial formulation is required to be respected by

this Court, which has to uphold the constitutional morality

behind utilization of such negative prescriptions.

22. Now, we need to concern ourselves about the freedom of

expression over the medium of internet. There is no gainsaying

that in today’s world the internet stands as the most utilized and

accessible medium for exchange of information.  The revolution

within the cyberspace has been phenomenal in the past decade,

wherein the limitation of storage space and accessibility of print

medium has been remedied by the usage of internet.  

23. At this point it is important to note the argument of Mr. Vinton

G. Cerf, one of the ‘fathers of the internet’. He argued that while

the internet is very important, however, it cannot be elevated to

the status of a  human right.2  Technology, in  his view, is an

enabler of rights and not a right in and of itself. He distinguishes

2 Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04,  2012).

25

between placing technology among the exalted category of other

human rights, such as the freedom of conscience, equality etc.

With great respect to his opinion, the prevalence and extent of

internet proliferation cannot be undermined in one’s life.

 24. Law and technology seldom mix like oil  and water.  There  is  a

consistent criticism that the development of technology is not met

by equivalent movement in the law. In this context, we need to

note that the law should imbibe the technological development

and accordingly mould its rules so as to cater to the needs of

society. Non recognition of technology within the sphere of law is

only a disservice to the inevitable. In this light, the importance of

internet cannot be underestimated, as from morning to night we

are encapsulated within the cyberspace and our most basic

activities are enabled by the use of internet.

 25. We need to distinguish between the internet as a tool and the

freedom of expression through the internet. There is no dispute

that freedom of speech and expression includes the right to

disseminate information to as wide a section of the population as

is possible. The wider range of circulation of information or its

greater impact cannot restrict the content of the right nor can it

26

justify its denial. [refer to Secretary, Ministry of Information &

Broadcasting Government of India v. Cricket Association of

Bengal,  (1995) 2 SCC 161;  Shreya Singhal v. Union of India,

(2015) 5 SCC 1].  

 26. The development of the jurisprudence in protecting the medium

for expression can be traced to the case of  Indian Express v.

Union of India, (1985) 1 SCC 641, wherein this Court had

declared that the freedom of print medium is covered under the

freedom of speech and expression. In Odyssey Communications

Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was

held that the right of citizens to exhibit films on Doordarshan,

subject to the terms and conditions to be imposed by the

Doordarshan,  is a part of the fundamental  right of freedom of

expression guaranteed under Article 19(1)(a), which can be

curtailed only under circumstances set out under Article 19(2).

Further, this Court expanded this protection to the use of

airwaves in the case of  Secretary, Ministry of Information &

Broadcasting, Government of India (supra). In this context, we

may note that this Court, in a catena of judgments, has

27

recognized free speech as a fundamental right, and, as

technology  has  evolved,  has recognized the freedom of speech

and  expression  over  different  media  of expression.  Expression

through the internet has gained contemporary relevance and is

one of the major means of information diffusion. Therefore, the

freedom of speech and expression through the medium of

internet is an integral part of Article 19(1)(a) and accordingly, any

restriction on the same must be in accordance with Article 19(2)

of the Constitution.

27. In this context, we need to note that the internet is also a very

important tool for trade and commerce. The globalization of the

Indian economy and the rapid advances in information and

technology have opened up vast business avenues and

transformed  India  as  a  global IT  hub.  There  is  no doubt that

there are certain trades which are completely dependent on the

internet. Such a right of trade through internet also fosters

consumerism and availability of choice. Therefore, the freedom of

trade and commerce through the medium of the internet is also

constitutionally  protected under  Article  19(1)(g), subject to the

restrictions provided under Article 19(6).

28

28. None of the counsels have argued for declaring the right to access

the internet  as  a fundamental right  and  therefore  we  are  not

expressing any view on the same. We are confining ourselves to

declaring that the right to freedom of speech and expression

under  Article  19(1)(a),  and  the right to  carry  on any trade  or

business under 19(1)(g), using the medium of internet is

constitutionally protected.  

29. Having explained the nature of fundamental rights and the utility

of internet under Article 19 of the Constitution, we need to

concern ourselves with respect to limitations provided under the

Constitution on these rights. With respect to the freedom of

speech and expression, restrictions  are  provided  under  Article

19(2) of the Constitution, which reads as under:

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

29

30. The right  provided  under  Article  19(1)  has  certain  exceptions,

which empowers the State to impose reasonable restrictions in

appropriate cases. The ingredients of Article 19(2) of the

Constitution are that:

a. The action must be sanctioned by law;

b. The proposed action must be a reasonable restriction;

c. Such restriction must be in furtherance of interests of

the sovereignty and integrity of India, the security of

the State, friendly relations with foreign States, public

order, decency or morality or in relation to contempt of

court, defamation or incitement to an offence.

31. At the outset, the imposition of restriction is qualified by the term

‘reasonable’ and is limited to situations such as interests of the

sovereignty, integrity, security, friendly relations with the foreign

States, public order, decency or morality or contempt of Court,

defamation or incitement to an offence. Reasonability of a

restriction is used in a qualitative, quantitative and relative

sense.

32. It  has been argued by the counsel  for the Petitioners that the

restrictions  under  Article  19  of the  Constitution cannot  mean

30

complete prohibition. In this context we may note that the

aforesaid contention cannot be sustained in light of a number of

judgments of this  Court  wherein  the restriction has also been

held to include complete prohibition in appropriate

cases. [Madhya Bharat Cotton Association Ltd. v. Union of

India, AIR 1954 SC 634,  Narendra Kumar v. Union of India,

(1960) 2 SCR 375,  State of Maharashtra v. Himmatbhai

Narbheram Rao, (1969) 2 SCR 392, Sushila Saw Mill v. State

of  Orissa, (1995)  5  SCC 615,  Pratap Pharma  (Pvt.)  Ltd.  v.

Union of India, (1997) 5 SCC 87 and Dharam Dutt v. Union of

India, (2004) 1 SCC 712]

33. The study of aforesaid case law points to three propositions

which emerge with respect to Article 19(2) of the Constitution. (i)

Restriction on free speech and expression may include cases of

prohibition. (ii)  There  should  not  be  excessive  burden  on free

speech even if a complete prohibition is imposed, and the

government  has to justify imposition of such  prohibition  and

explain as to why lesser alternatives would be inadequate.  (iii)

Whether  a restriction  amounts to  a complete  prohibition is  a

question of fact, which is required to be determined by the Court

31

with regard to the facts and circumstances of each case. [refer to

State of Gujarat v.  Mirzapur Moti Kureshi Kassab Jamat,

(2005) 8 SCC 534].

34. The second prong of the test, wherein this Court is required to

find whether the imposed restriction/prohibition was least

intrusive, brings us to the question of balancing and

proportionality. These concepts are not a new formulation under

the Constitution. In various parts of the Constitution, this Court

has taken  a  balancing  approach to  harmonize two competing

rights. In the  case  of  Minerva Mills  Ltd.  v.  Union of India,

(1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company

v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147,  this Court

has already applied the balancing approach with respect to

fundamental rights and the directive principles of State Policy.

35. Before,  we  delve into the  nuances  of ‘restriction’  as  occurring

under Article 19(2) of the Constitution, we need to observe

certain facts and circumstances in this case. There is no doubt

that Jammu and Kashmir has been a hot bed of terrorist

insurgencies for many years. In this light, we may note the

State’s submission that since 1990 to 2019 there have been

32

71,038 recorded incidents of terrorist violence, 14,038 civilians

have died, 5292 security personnel were martyred, 22,536

terrorists were killed. The geopolitical struggle cannot be played

down or ignored. In line with the aforesaid requirement, we may

note that even the broadest guarantee of free speech would not

protect the entire gamut of speech. The question which begs to be

answered is whether there exists a clear and present danger in

restricting such expression.

36. Modern terrorism heavily  relies on the  internet.  Operations on

the internet do not require substantial expenditure and are not

traceable easily. The internet is being used to support fallacious

proxy wars by raising money, recruiting and spreading

propaganda/ideologies.  The prevalence of the  internet  provides

an easy inroad to young impressionable minds. In this regard,

Gregory S. McNeal,3  Professor of Law and Public Policy,

Pepperdine University, states in his article about propaganda and

the use of internet in the following manner:

“Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that  has far­reaching

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

33

consequences.  Because internet  postings  are not regulated sources of news, they can reflect any viewpoint,  truthful or not.  Thus, readers tend to consider internet items to be fact, and stories can go unchecked for some time. Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda.”  

37. Susan W. Brenner,4  NCR Distinguished Professor of Law and

Technology, University of Dayton School of Law, also notes that

the traditional approach has not worked satisfactorily on

terrorism due to the proliferation of the internet. It is the

contention of the respondents that the restriction on the freedom

of speech was imposed due to the fact that there were national

security issues over and above a law and order situation, wherein

there were problems of  infiltration and support  from the other

side of the border to instigate violence and terrorism. The learned

Solicitor General pointed out that the ‘war on terrorism’ requires

imposition of such restriction so as to nip the problem of

terrorism in the bud. He submitted that in earlier times,

sovereignty and integrity of a State was challenged only on

occurrence of  war. In some cases, there  have  been instances

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

34

where the integrity of the State has been challenged by

secessionists. However, the traditional conceptions of warfare

have undergone an immense change and now it has been

replaced by a new term called ‘war on terror’. This war, unlike the

earlier ones, is not limited to territorial fights, rather, it

transgresses into other forms affecting normal life. The fight

against terror cannot be equated to a law and order situation as

well. In this light, we observe that this confusion of

characterising terrorism as a war  stricto sensu  or a normal law

and order situation has plagued the submission of the

respondent Government and we need to carefully consider such

submissions.

38. Before analysing the restrictions imposed on the freedom of

speech and expression in the Indian context, we need to have a

broad  analysis of the state of affairs in the  United  States of

America (hereinafter ‘US’) where freedom of expression under the

First Amendment  is  treated to be very significant with the US

being perceived to be one of the liberal constituencies with

respect to free speech jurisprudence. However, we need to refer to

the context and state of law in the US, before we can understand

such an assertion.

35

39. During the US civil war, a dramatic confrontation over free

speech arose with respect to the speech of Clement L.

Vallandigham, who gave a speech calling the civil  war  ‘wicked,

cruel and unnecessary’. He urged the citizens to use ballot boxes

to hurl ‘President Lincoln’ from his throne. As a reaction, Union

soldiers arrested Mr.  Vallandigham and he had to  face a  five­

member military commission which charged him with ‘declaring

disloyal sentiments and opinions with the object and purpose of

weakening the power of the government in its efforts to suppress

an unlawful rebellion’. [Ex parte Vallandigham, 28 F. Cas. 874

(1863)] The commission found Mr. Vallandigham guilty and

imposed imprisonment during the war. The aforesaid

imprisonment was met with demonstrations and publications

calling such imprisonment as a crime against the US

Constitution. President Lincoln, having regard to the US

Constitution, commuted the imprisonment and converted the

same to banishment. He justified the aforesaid act by stating that

banishment was more humane and a less disagreeable means of

securing least restrictive measures.

36

40. During  World  War I,  many within the  US had strong  feelings

against the war and the draft imposed by the administration of

President Woodrow Wilson. During this period, the US enacted

the Espionage Act, 1917 which penalised any person who wilfully

caused or attempted to cause insubordination, disloyalty, mutiny

by refusal from duty or naval services. In any case, in Abraham

v. United States, 250 U.S. 616 (1919), Justice Holmes even in

his dissent observed as under:

“I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.  The power undoubtedly is  greater in time of war than in time of peace, because war opens dangers that do not exist at other times.”

(emphasis supplied)

41.  The Second World War was also riddled with instances of tussle

between the First Amendment and national security issues. An

instance of the same was the conviction of William Dudley Pelley,

37

under the  Espionage  Act, 1917,  which the  Supreme  Court of

United States refused to review.

42. During the Cold War, the attention of the American Congress was

on the increase of communism. In 1954, Congress even enacted

the Communist Control Act, which stripped the Communist party

of all rights, privileges and immunities. During this time, Dennis

v. United States, 341 US 494 (1951), is an important precedent.

Sections 2(a)(1), 2(a)(3) and 3 of the Alien Registration Act, 1940

made it unlawful for any person to knowingly or wilfully advocate

with the intent of the overthrowing or destroying the Government

of the United States by force or violence, to organize or help to

organize any group which does so, or to conspire to do so. The

Petitioner in the  aforementioned  case  challenged the  aforesaid

provision on the ground that these provisions violated the First

Amendment. The US Supreme Court held: “An analysis of the leading cases in this Court which have involved direct limitations on speech, however,  will demonstrate that both the majority of the Court and the dissenters in particular  cases  have recognized that this is not  an unlimited,  unqualified  right,  but  that the societal value of speech must, on occasion, be subordinated to other values and considerations.”

38

43. During the Vietnam war, the US Supreme Court had to deal with

the case of  Brandenburg v. Ohio, 395 US 444 (1969), wherein

the Court over­ruled  Dennis  (supra) and  held that the State

cannot punish advocacy of unlawful conduct, unless it is

intended to incite and is likely to incite ‘imminent lawless action’.

44. There  is  no doubt that the events of  September 2011 brought

new challenges to the US in the name of ‘war on terror’. In this

context, Attorney General John Ashcroft stated that “To those…

who scare peace­loving people with phantoms of lost liberty, my

message is this: Your tactics only aid terrorists, for they erode our

national unity and diminish our resolve. They give ammunition to

America’s enemies…’.5 However, Bruce Ackerman, in his article,6

states that:

“The “war on terrorism”  has paid enormous political dividends .... but that does not make it a compelling legal concept. War is traditionally defined as a state of belligerency between sovereigns .... The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties.”

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

39

45. From the aforesaid study of the precedents and facts, we may

note that the law in the US has undergone lot of changes

concerning dissent during war. The position that emerges is that

any speech which incites imminent violence does not enjoy

constitutional protection.  

46. It goes without saying that the Government is entitled to restrict

the freedom of speech and expression guaranteed under Article

19(1)(a) if the need be so, in compliance with the requirements

under Article 19(2). It is in this context, while the nation is facing

such adversity, an abrasive statement with imminent threat may

be restricted, if the same impinges upon sovereignty and integrity

of India. The question is one of extent rather than the existence

of the power to restrict.

47. The requirement of balancing various considerations brings us to

the principle of proportionality. In the case of K. S. Puttaswamy

(Privacy­9J.) (supra), this Court observed:

“310…Proportionality is  an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law...”

40

48. Further,  in the case of  CPIO v Subhash Chandra Aggarwal,

(2019) SCC OnLine SC 1459, the meaning of proportionality was

explained as:

“225…It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted  to  a  greater  extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”

49. At the same time, we need to note that when it comes to

balancing national security with liberty, we need to be cautious.

In the words of Lucia Zedner7:

“Typically,  conflicting interests are said to be ‘balanced’ as if there were a self­evident weighting of or priority among them. Yet rarely are the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a zero­sum game in which more of one necessarily means less of the other … Although beloved of constitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor  unless  careful regard  is given to what is at stake.”

50. The proportionality principle, can be easily summarized by Lord

Diplock’s aphorism ‘you must not use a steam hammer to crack a

nut, if a nutcracker would do?’ [refer to R v. Goldsmith, [1983] 1

7Lucia  Zedner,  Securing  Liberty in the  Face  of  Terror:  Reflections from Criminal  Justice, (2005) 32 Journal of Law and Society 510.

41

WLR 151, 155 (Diplock J)].  In other words, proportionality is all

about means and ends.  

51. The suitability of proportionality analysis under Part III, needs to

be observed herein. The nature of fundamental rights has been

extensively commented upon. One view is that the fundamental

rights apply as  ‘rules’, wherein they apply in an ‘all­or­nothing

fashion’. This view is furthered by Ronald Dworkin, who argued

in his theory that concept of a right implies its ability to trump

over a public good.8  Dworkin’s view necessarily means that the

rights themselves are the end, which cannot be derogated as they

represent the highest norm under the Constitution. This would

imply that if the legislature or executive act in a particular

manner, in derogation of the right, with an object of achieving

public good, they shall be prohibited from doing so if the

aforesaid  action  requires restriction  of  a right.  However,  while

such an approach is often taken by American Courts, the same

may  not  be completely suitable in the Indian  context,  having

regard to the structure of Part III which comes with inbuilt

restrictions.  

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

42

52. However, there is an alternative view, held by Robert Alexy,

wherein the ‘fundamental rights’ are viewed as ‘principles’,9

wherein the rights are portrayed in a normative manner. Rules

are norms that are always either fulfilled or not; whereas

principles are norms which require that something be realized to

the greatest extent possible given the legal and factual

possibilities.10 This characterisation of principles has implications

for how to deal with conflicts between them: it means that where

they conflict, one principle has to be weighed against the other

and a determination has  to  be  made as to  which has greater

weight in this context.11  Therefore, he argues that nature of

principles implies the principle of proportionality.12

53. The doctrine of proportionality is not foreign to the Indian

Constitution, considering the use of the word ‘reasonable’ under

Article  19  of the  Constitution. In  a  catena of judgments, this

Court has held “reasonable restrictions” are indispensable for the

realisation of freedoms enshrined under Article 19, as they are

what ensure that enjoyment of rights is not arbitrary or

excessive, so as to affect public interest. This Court, while sitting

9R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).  10Ibid at page 47. 11Ibid, page 50. 12Ibid, page 66.

43

in a Constitution Bench in one of its earliest judgments in

Chintaman Rao v. State  of  Madhya Pradesh,  AIR  1951  SC

118 interpreted limitations on personal liberty, and the balancing

thereof, as follows:

“7.  The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.  The word “reasonable” implies intelligent  care  and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”

(emphasis supplied)

This Court, in  State of Madras v. V.G. Row,  AIR 1952 SC 196,

while laying down the test of reasonableness, held that:  

15. … It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid  down as  applicable to  all cases. The nature of the right alleged to have been infringed, the underlying purpose of the

44

restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict….

(emphasis supplied)

A Constitution Bench of this Court in  Mohammed

Faruk v. State  of  Madhya Pradesh,  (1969)  1  SCC  853  while

determining rights under Article 19(1)(g) of the Constitution,

discussed the doctrine of proportionality in the aforesaid terms:

“10. … The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession,  attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom … the possibility of achieving the object by imposing a less drastic restraint … or that a less drastic restriction may ensure the object intended to be achieved.”

(emphasis supplied)

In the case of  Om Kumar v. Union of India,  (2001) 2 SCC 386

the principle of proportionality, in light of administrative orders,

was explained as follows:

45

28. By “proportionality”, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least­restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.

(emphasis supplied)

[See also  State of Bihar v. Kamla Kant Misra, (1969) 3 SCC

337;  Bishambhar  Dayal  Chandra  Mohan v. State of  Uttar

Pradesh, (1982) 1 SCC 39]

54. Recently, this  Court in  Modern  Dental  College  & Research

Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held

that no constitutional right can be claimed to be absolute in a

realm where rights are interconnected to each other, and limiting

46

some rights in public interest might therefore be justified. The

Court held as follows:

“62. It is  now almost accepted that there are no absolute constitutional rights. [Though, debate on this vexed issue still continues and some constitutional experts claim that there are certain rights, albeit very few, which can still  be treated as “absolute”. Examples given are:(a) Right to human dignity which is inviolable, (b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment.  Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far  such attempts  of the  States have been thwarted by the judiciary.] … In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest.  This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—of both the right and its limitation in the Constitution— exemplifies the inherent tension between democracy’s two fundamental elements...”

(emphasis supplied)

47

55. In the aforesaid case, this Court was posed with a dilemma as to

how to treat competing rights. The Court attempted to resolve the

conflict by holding that rights and limitations must be interpreted

harmoniously so as to facilitate coexistence. This Court observed

therein:

“62… On the one hand is the right’s element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of  democracy, though this time  in  its formal aspect.  How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles.  This is one of the expressions of the multi­faceted nature of democracy.  Indeed, the inherent tension between democracy’s different facets is a “constructive tension”. It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental  aspects—rights on the one hand and its limitation on the other hand—is to be resolved by balancing the two so that they  harmoniously  coexist  with  each other.  This balancing is to be done keeping

48

in mind the relative social  values of each competitive aspects when considered in proper context.”

(emphasis supplied)

56. The next conundrum faced by the Court was  in achieving the

requisite balance,  the solution for which was derived from the

principle of proportionality. The eminent constitutional jurist, Kai

Möller  states  that the proportionality  principle is the doctrinal

tool which guides Judges through the process of resolving these

conflicts.13  One  of the theories  of proportionality  widely relied

upon by most theorists is the version developed by the German

Federal Constitutional Court. The aforesaid doctrine lays down a

four  pronged test wherein, first, it has to be analysed as to

whether the  measure restricting the rights  serves  a legitimate

goal (also called as legitimate goal test), then it has to be

analysed whether the measure is a suitable means of furthering

this goal (the rational connection stage), next it has to be

assessed  whether there existed  an  equally effective  but lesser

restrictive alternative remedy (the necessity test) and at last, it

should be  analysed  if such a measure had a disproportionate

impact on the right­holder (balancing stage). One important

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

49

feature of German test is the last stage of balancing, which

determines the outcome  as  most of the important issues are

pushed to the balancing stage and the same thereby dominates

the legal analysis. Under this approach,  any  goal which is

legitimate will be accepted; as usually a lesser restrictive measure

might  have the disadvantage of being less effective and even

marginal contribution to the goal will suffice the rational

connection test.14

57. The aforesaid test needs to be contrasted with its Canadian

counterpart also known as the Oakes test. According to the said

doctrine, the object of the measure must be compelling enough to

warrant overriding of the constitutionally guaranteed freedom; a

rational nexus must exist between such a measure and the object

sought to be achieved; the means must be least restrictive; and

lastly, there must be proportionality between the effects of such

measure and the object sought to be achieved. This doctrine of

proportionality is elaborately propounded by Dickson, C.J., of the

Supreme  Court of  Canada in  R. v. Oakes, (1986)  1  SCR  103

(Can) SC, in the following words (at p. 138):

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

50

“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for  a limit  on a  Charter right  or freedom are designed to serve, must be “of sufficient importance  to warrant  overriding a constitutionally protected right or freedom” … Second … the party invoking Section 1 must show  that the  means  chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”… Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there  must be a  proportionality between the effects of the measures which are responsible for limiting the Charter right or  freedom, and the objective which has been identified as of “sufficient importance”...  The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”

(emphasis supplied)

58. As can be seen, there exists substantial difference in both

approaches, as the  Oakes  test, instead of requiring “any”

51

legitimate goal, demands the same to be compelling enough to

warrant the limitation of constitutional rights. Additionally, while

the German necessity test calls for a lesser restrictive measure

which is equivalently effective, the need for effectiveness has been

done away with  in the  Oakes  test  wherein  the requirement of

least infringing measure has been stipulated.

59. It is also imperative for us to place reliance on Aharon Barak’s

seminal book15  on proportionality upon which Dr A.K. Sikri, J.

placed reliance while expounding the doctrine of proportionality

in Modern Dental College case (supra) as follows:  “60. … a limitation of a constitutional right will be constitutionally permissible if:

(i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a  limitation are  rationally connected  to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are  no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”)  between the importance of achieving the  proper  purpose  and the social importance of preventing the limitation on the constitutional right.”

(emphasis supplied)

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

52

60. In Modern Dental College case (supra), this Court also went on

to analyse that the principle of proportionality is inherently

embedded in Indian Constitution under the realm of the doctrine

of reasonable restrictions and that the same can be traced under

Article 19. The relevant extracts are placed below:

“65. We may unhesitatingly remark that this  doctrine  of  proportionality,  explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression “reasonable restriction” seeks to strike a balance between the freedom guaranteed by any of the sub­clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression “reasonable” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and  must not go in excess of that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC 33).  At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and  not from  the  point  of view of the persons upon whom the

53

restrictions  are imposed  or  upon  abstract considerations  (see Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731).”

(emphasis supplied) 61. Thereafter, a  comprehensive  doctrine  of  proportionality in line

with the German approach was propounded by this Court in the

Modern  Dental  College  case (supra)  wherein the  Court  held

that:

“63. In this direction,  the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute.  Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary...

64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”

(emphasis supplied)

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62. While some  scholars such  as  Robert  Alexy16  call for a strong

interpretation of the necessity stage as it has direct impact upon

the realisation and optimisation of constitutional rights while

others such as David Bilchitz17  found significant problems with

this approach.  

63. First, Bilchitz focuses on the issues arising out of both the

German test and the  Oakes  test, wherein the former treats all

policies to be necessary by justifying that the available

alternatives may not be equally effective, while the latter applies

the “minimal impairment test” narrowing the constitutionally

permissible policies and places a strong burden on the

Government to justify its policies. Therefore, Bilchitz argues that

if the necessity stage is interpreted strictly, legislations and

policies no matter how well intended will fail to pass the

proportionality inquiry if any other slightly less drastic measure

exists. Bilchitz, therefore, indicates that Alexy’s conclusion may

be too quick.  

16Robert Alexy,  A Theory of Constitutional Rights  (Oxford, Oxford University Press, 2002) 47.  17David Bilchitz,  Necessity and Proportionality: Towards A Balanced Approach?  in L. Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).  

55

64. Moreover, this also leads to the issue regarding the doctrine of

separation of power, as Courts would often substitute the views

of the legislature in deciding what is the “least restrictive

measure”. Taking the aforesaid issues into consideration, Bilchitz

proposed a moderate interpretation of the necessity test wherein

Courts may no longer be required to assess policies and

measures against impractical  and unreasonable  standards.  He

states that “[n]ecessity involves a process of reasoning designed to

ensure that only measures with a strong relationship to the

objective they seek to achieve can justify an invasion of

fundamental rights.  That process thus requires courts to reason

through the various stages of the moderate interpretation of

necessity.”18 He therefore recommends a four­step inquiry which

is listed below:19

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

(MN2) The relationship between the government measure under consideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner;  

18 Ibid, page 61. 19Ibid, page 61.

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

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

65. Admittedly, fundamental rights  may not  be absolute,  however,

they require strong protection, thereby mandating a sensible

necessity test  as the  same will  prevent the fundamental right

from becoming either absolute or to be diminished. Bilchitz,

describes the aforesaid test to be neither factual nor mechanical,

but rather normative and qualitative.  He states that “[t]he key

purpose of the necessity enquiry is to offer an explicit

consideration of  the relationship between means, objectives and

rights… Failure to conduct  the necessity enquiry with diligence,

however, means that a government measure can escape close

57

scrutiny in relation to both the realisation of the objective and its

impact upon fundamental rights.”20

66. Taking into consideration the aforesaid analysis, Dr. Sikri, J., in

K.S. Puttaswamy (Retired) v. Union of India,  (2019) 1 SCC 1

(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the

test laid down in Modern Dental College Case (supra) which was

based on the German Test and modulated the same as against

the tests laid down by Bilchitz. Therein this Court held that:

“157. In Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353], four sub­components of proportionality which need to be satisfied were taken note of. These are: (a) A measure restricting a right must have a legitimate goal (legitimate goal stage). (b) It must be a suitable means of furthering this goal (suitability or rational connection stage). (c) There must not be any less restrictive but equally effective alternative (necessity stage). (d) The measure must not have a disproportionate impact on the right­holder (balancing stage).

158.This has been approved in K.S. Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] as well. Therefore, the aforesaid stages of proportionality can be looked  into  and discussed.  Of course,  while undertaking this exercise it has also to be

20Ibid, 62

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seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis  which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353] and recapitulated above, would  be the safe  method in  undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted.”

(emphasis supplied)

67. Dr. Chandrachud, J., in  K.S. Puttaswamy (Aadhaar­5J.)

(supra),  made observations on the test of proportionality that

needs to be satisfied under our Constitution for a violation of the

right to privacy to be justified, in the following words:  

“1288. In K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us (Chandrachud, J.), speaking for four Judges, laid down the tests that would need to be satisfied under our Constitution for violations of privacy to be justified. This included the test of proportionality: (SCC p. 509, para 325)

59

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

The third principle [(iii) above] adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve them.  The essential role of  the test of  proportionality  is to enable the court to determine whether a legislative measure is disproportionate in its interference with the fundamental right. In determining this,  the court will  have regard to whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law. Sanjay  Kishan Kaul,  J., in  his  concurring

60

opinion, suggested a four­pronged test as follows: (SCC p. 632, para 638)

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

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

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

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

(emphasis supplied)

68. After applying the aforesaid doctrine in deciding the

constitutional validity of the Aadhaar scheme, Dr. Chandrachud,

J., in the  K.S. Puttaswamy (Aadhaar­5J.)  case  (supra),

reiterated the fundamental precepts of doctrine of proportionality

in relation to protection of privacy interests while dealing with

personal data:

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

1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim;

1324.2. The justification for rights­infringing measures that interfere with or limit the exercise of fundamental rights and

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liberties must be based on the existence of a rational connection between  those  measures, the  situation in fact and the object sought to be achieved;

1324.3. The measures must be  necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim;

1324.4. Restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and

1324.5. The State must  provide sufficient safeguards relating to the storing and protection of centrally stored data. In order to prevent arbitrary or abusive interference with privacy, the State must guarantee that the collection and use of personal information is based on the consent of the individual; that it is authorised by law and that sufficient safeguards exist to ensure that the data is only used for the purpose specified at the time of collection. Ownership of the data must at all times vest in the individual whose data  is collected. The individual must have a right of access to the data collected and the discretion to opt out.”

(emphasis supplied)

69. This is the current state of the doctrine of proportionality as it

exists in India, wherein proportionality is the key tool to achieve

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judicial balance. But many scholars are not agreeable to

recognize proportionality equivalent to that of balancing.21

70. In view of the aforesaid discussion, we may summarize the

requirements  of the  doctrine  of  proportionality  which must be

followed by the authorities before passing any order intending on

restricting  fundamental rights  of individuals. In  the  first  stage

itself, the possible goal of such a measure intended at imposing

restrictions must be determined. It ought to be noted that such

goal must be legitimate. However, before settling on the aforesaid

measure, the authorities must assess the existence of any

alternative mechanism in furtherance of the aforesaid goal. The

appropriateness of  such a measure depends on its  implication

upon the fundamental rights and the necessity of such measure.

It is undeniable  from the aforesaid holding that only the  least

restrictive measure can be resorted to by the State, taking into

consideration the facts and circumstances. Lastly, since the

order has serious implications on the fundamental rights of the

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

63

affected parties, the same should be supported by sufficient

material and should be amenable to judicial review.

71. The degree of restriction and the scope of the same, both

territorially  and  temporally,  must  stand  in  relation  to  what is

actually necessary to combat an emergent situation.  

72. To consider the immediate impact of restrictions upon the

realization of the fundamental rights, the decision maker must

prioritize the various factors at stake. Such attribution of relative

importance is  what constitutes  proportionality. It ought to  be

noted that a decision which curtails fundamental rights without

appropriate justification will be classified as disproportionate.

The concept of proportionality requires a restriction to be tailored

in accordance with  the  territorial  extent of the  restriction, the

stage of emergency, nature of urgency, duration of such

restrictive measure and nature of such restriction. The

triangulation of a restriction requires the consideration of

appropriateness, necessity and the least restrictive measure

before being imposed.  

73. In this context, we need to note that the Petitioners have relied

on a recent judgment of the High Court of Hong Kong, in Kwok

64

Wing Hang and Ors.  v.  Chief  Executive in  Council,  [2019]

HKCFI 2820 to state that the Hong Kong High Court has utilised

the principle to declare the “anti­mask” law as unconstitutional.

In any case, we need not comment on the law laid down therein,

as this Court has independently propounded the test of

proportionality as applicable in the Indian context. However, we

may just point out that the proportionality test needs to be

applied in the context of facts and circumstances, which are very

different in the case at hand.

74. Having observed the law on proportionality and reasonable

restrictions, we need to come back to the application of

restrictions on the freedom of speech over the internet.

75. The respondent­State has vehemently opposed selective access to

internet services based on lack of technology to do the same. If

such a contention is accepted, then the Government would have

a free pass to put a complete internet blockage every time. Such

complete blocking/prohibition perpetually cannot be accepted by

this Court.

76. However, there is ample merit in the contention of the

Government that the internet could be used to propagate

terrorism thereby challenging the sovereignty and integrity of

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India. This Court would only observe that achievement of peace

and tranquillity within the erstwhile State of Jammu and

Kashmir requires a  multifaceted approach  without excessively

burdening the freedom of speech. In this regard the Government

is required to consider various options under Article 19(2) of the

Constitution, so that the brunt of exigencies is decimated in a

manner which burdens freedom of speech in a minimalist

manner.  

77. Having discussed the general constitutional ambit of the

fundamental rights, proportionality and reasonable restrictions,

and a specific discussion on freedom of expression through the

internet and its restriction under Article 19(2), we now need to

analyse the application of the same in the present case.  

F. INTERNET SHUTDOWN    

78. Having observed the substantive law concerning the right to

internet and the restrictions that can be imposed on the same,

we need to turn our attention to the procedural aspect.

79. It  must  be  noted that  although substantive justice  under the

fundamental rights analysis is important, procedural justice

cannot be sacrificed on the altar of substantive justice. There is a

66

need for procedural justice in cases relating to restrictions which

impact individuals’ fundamental rights as was recognized by this

Court in the case of Maneka Gandhi v. Union of India, (1978) 1

SCC 248 and the K. S. Puttaswamy (Privacy­9J.) case (supra).   

80. The procedural mechanism contemplated for restrictions on the

Internet, is twofold: first is contractual, relating to the contract

signed between Internet Service Providers and the Government,

and the second is statutory, under the Information Technology

Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph

Act. In the present case, we are concerned only with the statutory

scheme available, particularly under the Telegraph Act, and we

will therefore confine our discussion mostly to the same.

However, as it would be apposite to distinguish between the

different statutory mechanisms, we would touch upon these

cursorily.

81. Section 69A of the Information Technology Act, 2000 read with

the Information Technology (Procedures and Safeguards for

Blocking for Access of Information by Public) Rules, 2009 allows

blocking of access to information.  This  Court, in the  Shreya

Singhal  case (supra),  upheld the constitutional validity of this

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Section and the Rules made thereunder. It is to be noted

however, that the field of operation of this section is limited in

scope. The aim of the section is not to restrict/block the internet

as a whole, but only to block access to particular websites on the

internet. Recourse cannot, therefore, be made by the Government

to restrict the internet generally under this section.

82. Prior to 2017, any measure restricting the internet generally or

even shutting down the internet was passed under Section 144,

Cr.P.C., a general provision granting wide powers to the

Magistrates specified therein to pass orders in cases of

apprehended danger. In 2015, the High Court of Gujarat, in the

case of  Gaurav Sureshbhai Vyas v. State of Gujarat,  in Writ

Petition (PIL) No. 191 of 2015, considered a challenge to an order

under  Section 144,  Cr.P.C.  blocking  access to  mobile internet

services in the State of Gujarat. The High Court of Gujarat, vide

order dated 15.09.2015, upheld the restriction imposed by the

Magistrate under Section 144, Cr.P.C. While the Court did not

undertake a full­fledged discussion of the power of the Magistrate

to issue such restrictions under Section 144, Cr.P.C., the Court

observed as follows:

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“9.…[U]nder Section 144 of the Code, directions may be issued to certain persons who may be the source  for  extending the facility of internet access. Under the circumstances, we do not find that the contention raised  on  behalf of the  petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted.”

(emphasis supplied)

A Special Leave Petition was filed against the above judgment of

the Gujarat High Court, being SLP (C) No. 601 of 2016, which

was dismissed by this Court in limine on 11.02.2016.    

83. The position has changed since 2017, with the passage of the

Suspension Rules under Section 7 of the Telegraph Act. With the

promulgation of the Suspension Rules, the States are using the

aforesaid Rules to restrict  telecom services  including access to

the internet.  

84. The Suspension Rules lay down certain safeguards, keeping in

mind the fact that an action under the same has a large effect on

the fundamental rights of citizens. It may be mentioned here that

we are not concerned with the constitutionality of the Suspension

Rules, and arguments on the same were not canvassed by either

69

side.  As such, we are limiting our discussion to the procedure

laid down therein. Rule 2 lays down the procedure to be followed

for the suspension of telecom services, and merits reproduction

in its entirety:

“2.(1) Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the  Ministry  of  Home Affairs in the case of Government of India or by the Secretary to the State Government in­charge of the Home Department  in the case of a State Government (hereinafter referred to as the competent authority), and in unavoidable circumstances, where obtaining of prior direction is  not feasible, such  order  may  be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly  authorised by the  Union Home Secretary or the State Home Secretary, as the case may be:

      Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order:

      Provided further that the order of suspension of telecom services shall  cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours.

(2) Any order issued by the competent authority under sub­rule (1) shall contain

70

reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day.

(3) The directions for suspension issued under sub­rule (1) shall  be conveyed to  designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses under section 4 of the said Act, in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic communication and its implementation shall be determined by the telegraph authority.

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

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

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

      (a) Cabinet Secretary­Chairman;        (b) Secretary to the Government of   India

In­charge, Legal Affairs­Member; (c) Secretary to the Government,

Department of Telecommunications ­Member.

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

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(a)Chief Secretary­Chairman; (b)Secretary Law or Legal           

Remembrancer In­Charge, Legal    Affairs­Member;

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

(6)  The  Review  Committee shall  meet  within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the  directions  issued under sub­rule (1) are in accordance with the provisions of sub­section (2) of section 5 of the said Act.”

85. Rule  2(1) specifies the competent authority to issue  an  order

under the Suspension Rules, who in ordinary circumstances

would be the Secretary to the Ministry of Home Affairs,

Government of India, or in the case of the State Government, the

Secretary to the Home Department of the State Government. The

sub­rule also provides that in certain “unavoidable”

circumstances an officer, who is duly authorised, not below the

rank of a Joint Secretary, may pass an order suspending

services.  The two provisos to  Rule  2(1)  are  extremely relevant

herein, creating an internal check as to orders which are passed

by an authorised officer in “unavoidable” circumstances, as

opposed to the ordinary mechanism envisaged, which is the

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issuing  of the  order  by the  competent  authority.  The provisos

together provide that the orders passed by duly authorised

officers in “unavoidable” circumstances need to be confirmed by

the competent authority within twenty­four hours, failing which,

as  per  the second proviso, the order of suspension will cease to

exist. The confirmation of the order by the competent authority is

therefore essential, failing which the order passed by a duly

authorised officer will automatically lapse by operation of law.  

86. Rule 2(2) is also extremely important, as it lays down twin

requirements for orders passed under Rule 2(1). First, it requires

that every order passed by a competent authority under Rule 2(1)

must  be  a reasoned order.  This requirement  must  be read  to

extend not only to orders passed by a competent authority, but

also to those orders passed by an authorised officer which is to

be sent for subsequent confirmation to the competent authority.

The reasoning of the authorised officer should not only indicate

the  necessity  of the  measure  but  also  what the “unavoidable”

circumstance was which necessitated his passing the order. The

purpose of the aforesaid rule is to integrate the proportionality

analysis within the framework of the Rules.

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87. Only in such an event would the requirement of confirmation by

the competent authority have any meaning, as it would allow the

competent authority to properly consider the action taken by the

authorised officer. Further, the confirmation must not be a mere

formality, but must indicate independent application of mind by

the competent authority to the order passed by the authorised

officer, who must also take into account changed circumstances

if any, etc. After all, it is the competent authority who has been

given the power under the Suspension Rules to suspend telecom

services, with the authorised officer acting under the Suspension

Rules only due to some exigent circumstances.    

88. The second requirement under Rule 2(2) is the forwarding of the

reasoned order of the competent authority to a Review Committee

which has been set up under the Suspension Rules, within one

working day. The composition of the Review Committee is

provided under Rule  2(5),  with  two distinct review committees

contemplated for the  Union  and the  State, depending on the

competent authority  which issued the order  under  Rule  2(1).

Rule 2(6) is the final internal check under the Suspension Rules

with respect to the orders issued thereunder. Rule 2(6) requires

the concerned  Review  Committee to  meet  within five  working

74

days of issuance of the order suspending telecom services, and

record its findings  about  whether the  order issued  under the

Suspension Rules is in  accordance  with the  provisions  of the

main statute, viz., Section 5(2) of the Telegraph Act.

89. This last requirement, of the orders issued under the Rules being

in accordance with Section 5(2), Telegraph Act, is very relevant to

understand the circumstances  in which the suspension orders

may be passed. Section 5(2), Telegraph Act is as follows:

“5. Power for Government to take possession of licensed telegraphs and to order interception of messages  xxx (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the  sovereignty  and  integrity  of India, the security of the  State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to  be recorded in  writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall  be intercepted  or  detained,  or  shall  be disclosed to the Government making the order or an officer thereof mentioned in the order:

75

      Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited  under this sub­section.”

90. This Court has had prior occasion to interpret Section 5 of the

Telegraph  Act. In the case of  Hukam Chand  Shyam Lal v.

Union of India, (1976) 2 SCC 128, a Four­Judge Bench of this

Court interpreted Section 5 of the Telegraph Act and observed as

follows:

“13.  Section 5(1) if  properly  construed,  does not confer unguided and unbridled power on the Central Government/State Government/ specially authorised officer to take possession of any telegraphs.  Firstly, the occurrence of a “public emergency” is the     sine qua non for    the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a pre­requisite for the exercise of power under this section, must be a “public emergency” and not any other kind of emergency.  The  expression  public emergency has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to be read as a whole.  In sub­section (1) the phrase ‘occurrence of any public

76

emergency’ is connected with and is immediately followed by the phrase “or in the interests  of the  public safety”.  These two phrases appear to take colour from each other. In the first part of sub­section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a “public emergency” within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.  It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section...”

(emphasis supplied)

91. The  aforementioned  case  was followed in  People’s  Union  for

Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, in

the context of phone­tapping orders passed under Section 5(2) of

the Telegraph Act, wherein this Court observed as follows:

“29.  The  first  step under Section 5(2)  of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its

77

satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.”

92. Keeping in mind the wordings of the section, and the above two

pronouncements  of this  Court,  what  emerges is that the  pre­

requisite for an order to be passed under this sub­section, and

therefore the Suspension Rules, is  the occurrence of  a “public

emergency” or for it to be “in the interest of public safety”.

Although  the  phrase “public  emergency”  has  not  been defined

under the Telegraph Act, it has been clarified that the meaning of

the phrase can be inferred from its usage in conjunction with the

phrase “in the interest of public safety” following it. The Hukam

Chand Shyam Lal case (supra) further clarifies that the scope of

“public emergency” relates to the situations contemplated under

the sub­section pertaining to “sovereignty and integrity of India,

the security of the State, friendly relations with foreign states or

78

public order or for preventing incitement to the commission of an

offence”.   

93. The word ‘emergency’ has various connotations. Everyday

emergency, needs to be distinguished from the type of emergency

wherein events which involve, or might involve, serious and

sometimes widespread risk of injury or harm to members of the

public or the destruction of, or serious damage to, property.

Article 4 of the International Covenant on Civil and Political

Rights, notes that ‘[I]n time of public emergency which threatens

the life of the nation and the existence of which is officially

proclaimed...’. Comparable language has also been used in Article

15 of the European Convention on Human Rights which says­ "In

time of war or other public emergency threatening the life of the

nation".  We may only  point  out that the ‘public  emergency’ is

required to be of serious nature, and needs to be determined on a

case to case basis.  

94. The second requirement of Section 5(2) of the Telegraph Act is for

the authority to be satisfied that it is necessary or expedient to

pass the orders in the interest of the sovereignty and integrity of

India, the  security  of the  State, friendly relations  with foreign

79

states or public order or for preventing incitement to the

commission of an offence, and must record reasons thereupon.

The term ‘necessity’ and ‘expediency’ brings along the stages an

emergency is going to pass through usually. A public emergency

usually  would involve  different stages and the  authorities  are

required to have regards to the stage, before the power can be

utilized under the aforesaid rules. The appropriate balancing of

the factors differs, when considering the stages of emergency and

accordingly, the authorities are required to triangulate the

necessity of imposition of such restriction  after satisfying the

proportionality requirement.

95. A point canvassed by the learned counsel for the Petitioner, Ms.

Vrinda Grover, with regard to the interpretation of the proviso to

Section 5(2) of the Telegraph  Act. The  proviso  to the section

specifies that a class of messages,  i.e., press messages intended

to be published in India of correspondents accredited to the

Central Government or a State Government, will be treated

differently from other classes of messages. The learned counsel

contended that this separate classification necessitates that an

order interfering  with the  press  would  be in compliance  with

Section 5(2) of the Telegraph Act only if it specifically states that

80

the press is also to be restricted. However, the aforesaid

interpretation could not be supported by the petitioner with any

judgments of this Court.  

96. It must be noted that although the Suspension Rules does not

provide for  publication  or  notification of the orders, a settled

principle of law, and of natural justice, is that an order,

particularly one that affects lives, liberty and property of people,

must be made available. Any law which demands compliance of

the people requires to be notified directly and reliably. This is the

case regardless of whether the parent statute or rule prescribes

the same or not. We are therefore required to read in the

requirement  of ensuring that  all the  orders  passed  under the

Suspension Rules are made freely available, through some

suitable mechanism. [See  B.K. Srinivasan v. State of

Karnataka, (1987) 1 SCC 658]

97. The above requirement would  further the rights of  an affected

party to challenge the orders, if aggrieved. Judicial review of the

orders  issued under the Suspension Rules  is always available,

although no appellate  mechanism has been provided,  and the

same cannot  be taken away or  made  ineffective.  An aggrieved

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person has the constitutional right to challenge the orders made

under the Suspension Rules, before the High Court under Article

226 of the Constitution or other appropriate forum.

98. We also direct that all the above procedural safeguards, as

elucidated by us, need to be mandatorily followed. In this

context, this Court in the  Hukam Chand Shyam Lal  case

(supra), observed as follows:

“18. It is well­settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other amodes (   sic   ) of  performance  are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature...”

(emphasis supplied)

This applies with even more force considering the large public

impact on the right to  freedom of  speech and expression that

such a broad­based restriction would have.

99. Lastly,  we think it  necessary to reiterate that  complete  broad

suspension of telecom services, be it the Internet or otherwise,

being a drastic measure, must be considered by the State only if

‘necessary’ and ‘unavoidable’. In furtherance  of the same, the

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State  must  assess the  existence  of  an alternate less intrusive

remedy. Having said so, we may note that the aforesaid

Suspension Rules have certain gaps, which are required to be

considered by the legislature.  

100. One of the gaps which must be highlighted relates to the usage of

the word “temporary” in the title of the Suspension Rules.

Despite the above, there is no indication of the maximum

duration for which a suspension order can be in operation.

Keeping in mind the requirements of proportionality expounded

in the earlier section of the judgment, we are of the opinion that

an order suspending the aforesaid services indefinitely is

impermissible. In this context,  it is necessary to lay down some

procedural safeguard till the aforesaid deficiency is cured by the

legislature to ensure that the exercise of power under the

Suspension  Rules is  not  disproportionate.  We therefore  direct

that  the  Review Committee constituted under Rule  2(5)  of the

Suspension Rules must conduct a periodic review within seven

working days of the previous review, in terms of the requirements

under Rule 2(6). The Review Committee must therefore not only

look into the  question of  whether the restrictions are still in

compliance with the requirements of Section 5(2) of the Telegraph

83

Act, but must also look into the question of whether the orders

are still proportionate, keeping in mind the constitutional

consequences of the same. We clarify that looking to the fact that

the  restrictions  contemplated under the  Suspension Rules  are

temporary  in nature,  the same must not be allowed to extend

beyond that time period which is necessary.

101. Coming to the orders placed before us regarding restrictions on

communication and Internet, there are eight orders that are

placed before us. Four orders have been passed by the Inspector

General  of  Police,  of the respective  zone,  while the  other four

orders are confirmation orders passed by the Principal Secretary

to the Government of Jammu and Kashmir, Home Department,

confirming the  four orders passed by the  Inspector General  of

Police.  

102. The learned Solicitor General has apprised the Bench that the

authorities are considering relaxation of the restrictions and in

some places the restrictions have already been removed. He also

pointed that the authorities are constantly reviewing the same. In

this case, the submission of the Solicitor General that there is

still possibility of danger to public safety cannot be ignored, as

this Court has not been completely apprised about the ground

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situation by the State.  We believe that the authorities have to

pass their orders based on the guidelines provided in this case

afresh. The learned Solicitor General had submitted, on a query

being put to him regarding the feasibility of a measure blocking

only social  media  services, that the same could  not  be  done.

However, the State should have attempted to determine the

feasibility of  such a measure. As all the orders have not been

placed before this Court and there is no clarity as to which orders

are in operation and which have already been withdrawn, as well

as the apprehension raised in relation to the possibility of public

order situations, we have accordingly moulded the relief in the

operative portion.

G. RESTRICTIONS UNDER SECTION 144 OF CRPC.    

“As emergency does not shield the actions of Government

completely; disagreement does not justify destabilisation;

the beacon of rule of law shines always.”

103. The Petitioners have asserted that there were no disturbing facts

which warranted the imposition of restrictions under Section

144, Cr.P.C. on 04.08.2019. They strenuously argued that there

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had to be a circumstance on  04.08.2019 showing that there

would be an action which will likely create obstruction,

annoyance or injury to any person or will likely cause

disturbance of the public tranquillity, and the Government could

not have passed such orders in anticipation or on the basis of a

mere apprehension.  

104. In response, the learned Solicitor General, on behalf of the

Respondent, argued that the volatile history, overwhelming

material available even in the public domain about external

aggressions, nefarious secessionist activities and the provocative

statements given by political leaders, created a compelling

situation which mandated passing of orders under Section 144,

Cr.P.C.

105. These  contentions  require  us to  examine  the  scope of  Section

144, Cr.P.C, which reads as follows:

“144. Power to issue order in urgent cases

of nuisance or apprehended danger.—(1) In

cases where,  in the opinion  of a District

Magistrate, a Sub­divisional Magistrate or any

other Executive Magistrate specially

empowered  by the  State  Government in this

behalf, there is sufficient ground for proceeding

86

under this section and immediate prevention or

speedy remedy is  desirable, such  Magistrate

may,  by  a  written order stating the  material

facts of the case  and served in the  manner

provided by Section 134, direct any person to

abstain  from a certain act or to take certain

order  with respect to  certain property in  his

possession or under his management, if such

Magistrate considers that such direction is

likely to prevent, or tends to prevent,

obstruction, annoyance or injury to any person

lawfully employed, or danger to human life,

health or safety, or a disturbance of the public

tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of

emergency or in cases where the

circumstances do not admit of the serving in

due time of a notice upon the person against

whom the order is directed, be passed ex parte.

(3) An order under this section may be directed

to a particular individual, or to persons

residing in a particular place or area, or to the

public generally when frequenting or visiting a

particular place or area.

(4) No order under this section shall remain in

force for more than two months from the

making thereof:

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Provided that, if the State Government

considers it necessary so to do for preventing

danger to human life,  health or safety or  for

preventing a riot or any affray, it may, by

notification,  direct that an  order  made  by  a

Magistrate under this section shall remain in

force for such further period not exceeding six

months from the date on which the order made

by the  Magistrate  would  have, but for such

order,  expired,  as it  may specify in the  said

notification.

(5) Any Magistrate may, either on his own

motion or on the application of any person

aggrieved, rescind or alter any order made

under this section, by himself or any

Magistrate subordinate to him or by his

predecessor­in­office.

(6)  The State  Government  may,  either  on  its

own motion or on the application of any person

aggrieved, rescind or alter any order made by it

under the proviso to sub­section (4).

(7) Where an application under sub­section (5)

or sub­section (6)  is received, the Magistrate,

or the State Government, as the case may be,

shall afford to the applicant an  early

opportunity of appearing before him or it, either

in person or by  pleader and showing cause

88

against the order; and if the Magistrate or the

State Government, as the case may be, rejects

the application wholly or in part, he or it shall

record in writing the reasons for so doing.

106. Section 144, Cr.P.C. is one of the mechanisms that enable the

State to maintain public peace. It forms part of the Chapter in

the Criminal Procedure Code dealing with “Maintenance of Public

Order and Tranquillity” and is contained in the sub­chapter on

“urgent cases of nuisance or apprehended danger”. The structure

of the provision shows that this power can only be invoked in

“urgent cases of nuisance or apprehended danger”.

107. Section  144, Cr.P.C. enables the State to take preventive

measures to deal with imminent threats to public peace. It

enables the Magistrate to issue a mandatory order requiring

certain actions to be undertaken, or a prohibitory order

restraining citizens from doing certain things. But it also provides

for several safeguards to ensure that the power is not abused,

viz.­ prior inquiry before exercising this power, setting out

material facts for exercising this power and modifying/rescinding

the order when the situation so warrants.

89

108. The aforesaid safeguards in Section 144, Cr.P.C. are discussed

below and deserve close scrutiny.   (a) Prior Inquiry before issuing Order: Before issuing an order

under  Section 144,  Cr.P.C., the  District  Magistrate (or  any

authorised Magistrate) must be of the opinion that: i. There is a sufficient ground for proceeding under this

provision i.e. the order is  likely to prevent  obstruction,

annoyance or  injury to any person lawfully employed or

danger to human life, health or safety or disturbance to

the public tranquillity; and  ii. Immediate prevention or speedy remedy is desirable.

The phrase “opinion” suggests that it must be arrived at after

a careful inquiry by the Magistrate about the need to exercise

the extraordinary power conferred under this provision.  

(b) Content of the Order: Once a Magistrate arrives at an

opinion,  he  may issue  a  written  order either  prohibiting  a

person from doing something or a mandatory order requiring

a person to take action with respect to property in his

possession or under his management. But the order cannot be

a blanket  order. It  must set  out  the “material facts”  of the

case.  The  “material facts”  must indicate the  reasons which

90

weighed with the Magistrate to issue an order under Section

144, Cr.P.C.  

(c) Communication of the Order:  The Order must be served in

the manner provided under Section 134, Cr.P.C., i.e., served

on the person against whom it is made. If such a course of

action is not practicable, it must be notified by proclamation

and publication so as to convey the information to persons

affected by the order. Only in case of an emergency or where

the circumstances are such that notice cannot be served on

such a person, can the order be passed ex parte.  

(d) Duration of the Order: As this power can only be exercised

in urgent cases, the statute has incorporated temporal

restrictions—the order cannot be in force for more than two

months. However, the State Government can extend an order

issued under Section 144, Cr.P.C. by a Magistrate for a

further period up to six months if the State Government

considers  it  necessary  for  preventing danger to human  life,

health or safety or preventing a riot.  

Although, a two­month period outer limit for the Magistrate,

and a  six­month  limit for the  State  Government,  has  been

provided under Section 144, Cr.P.C. but the concerned

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Magistrate and the State Government must take all steps to

ensure that the restrictions are imposed for a limited

duration.  

(e) Act  Judicially  while  Rescinding  or  Modification of the

Order: The Magistrate can rescind or alter any order made by

him on his own or on an application by any aggrieved person.

Similarly, the State Government may also on its own motion

rescind or alter  any order passed by it,  extending an order

passed under Section 144, Cr.P.C. While considering any

application for modification or alteration, the Magistrate or the

State Government is required to act judicially, i.e., give a

personal hearing and give reasons if it rejects the application.

Care should be taken to dispose of such applications

expeditiously.  

109. Section  144, Cr.P.C. has been the subject matter of several

Constitution Bench rulings and we will briefly examine them. The

constitutional  validity of Section 144, Cr.P.C. under the

predecessor of the 1898 Act came up for the first time before the

Constitution Bench of this Court in Babulal Parate case (supra).

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Repelling the contention that it is an infringement of the

fundamental right of assembly, this Court upheld the provision

due to the various safeguards inbuilt under Section 144, Cr.P.C.

This Court opined that: a. Section 144, Cr.P.C does not confer arbitrary power on

the Magistrate, since it must be preceded by an inquiry.  b. Although Section 144,  Cr.P.C  confers  wide  powers, it

can only be exercised in an emergency, and for the

purpose of preventing obstruction and annoyance or

injury to  any  person lawfully employed.  Section  144,

Cr.P.C is not an unlimited power. c. The Magistrate, while issuing an order, has to state the

material facts upon which it is based. Since the order

states the relevant facts, the High Court will have

relevant material to consider whether such material is

adequate to issue Section 144, Cr.P.C order. While

considering such reasons, due weight must be given to

the opinion of the District Magistrate who is responsible

for the maintenance of public peace in the district.   d. This power can be exercised even when the Magistrate

apprehends danger. It is not just mere “likelihood” or a

“tendency”, but immediate prevention of particular acts

to counteract danger.  e. Even if certain sections of people residing in the

particular area are disturbing public order, the

Magistrate can pass an order for the entire area as it is

difficult for the Magistrate to distinguish between

members of the public and the people engaging in

93

unlawful activity. However, any affected person can

always  apply to the  Magistrate  under  Section  144(4),

Cr.P.C. seeking exemption or modification of the order

to permit them to carry out any lawful activity. f. If any person makes an application for modification or

alteration of the order, the Magistrate has to conduct a

judicial  proceeding  by  giving  a  hearing,  and give the

reasons for the decision arrived at. g. The order of the Magistrate under Section 144, Cr.P.C is

subject to  challenge  before the  High Court.  The High

Court’s revisionary powers are wide enough to quash an

order which cannot be supported by the materials upon

which the order is supposed to be based.  h. If any prosecution is launched for non­compliance of an

order issued under Section 144, Cr.P.C., the validity of

such an order under Section 144, Cr.P.C. can be

challenged even at that stage.

110. The validity of the Section 144(6) under the 1898 Act again came

up for consideration before a Bench of five Judges in  State of

Bihar v. Kamla Kant Misra,  (1969) 3 SCC 337. The majority

judgment declared the latter part of Section 144(6),  Cr.P.C as it

then existed, which enabled the State Government to extend an

order passed under Section 144,  Cr.P.C.  indefinitely, as

unconstitutional, since it did not provide limitations on the

duration of the order and no mechanism was provided therein to

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make a representation against the duration of the order. Under

the 1973 Act, a time limit has been prescribed on the maximum

duration of the order.  

111. A Bench of seven Judges in the Madhu Limaye case (supra) was

constituted to re­consider the law laid down in Babulal Parate

(supra)  and the constitutional validity of  Section  144,  Cr.P.C.

This Court, while affirming the constitutional validity of Section

144, Cr.P.C. reiterated the safeguards while exercising the power

under Section 144, Cr.P.C. The Court highlighted that the power

under Section 144, Cr.P.C. must be:  

(a)exercised in urgent situations to prevent harmful

occurrences. Since this power can be exercised

absolutely and even ex parte, “the emergency must be

sudden and the consequences sufficiently grave”  

(b)exercised in a judicial manner which can withstand  

judicial scrutiny.  

This Court observed that:

“24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful  occurrences.  As  it is  possible to act absolutely and even ex parte.  it is obvious that the emergency must be sudden and the consequences sufficiently grave.  Without it the exercise of power would have no

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justification.  It is not an ordinary power flowing from administration but a power used in  a judicial  manner  and  which  can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence: …

These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots  and affray lead to  subversion of  public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented.  …..In so  far as the other parts of the section are concerned the key­note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public.  We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.”

(emphasis supplied) 112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC

226,  this Court, in deciding a review petition, elaborated on the

circumstances in  which the  power  under Section 144,  Cr.P.C.

can be exercised. This Court held as under:

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“3. ...It is only where it is not practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 of the Criminal Procedure  Code  which  may interfere  with what  are, otherwise,  completely legal  and permissible conduct and speech. 4.….It may however be noted that the Magistrate is not concerned with individual rights in performing  his duty  under  Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. 5.… If  public peace and tranquillity  or other objects mentioned there are not in danger the Magistrate concerned cannot act under Section 144. He could only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquillity are in danger, it is left to the Magistrate concerned to take proper action under Section 144, Cr.P.C.”

(emphasis supplied)

113. In  Gulam Abbas v. State of Uttar Pradesh,  (1982) 1 SCC 71,

this Court held that an order passed under Section 144, Cr.P.C.

is an executive order which can be questioned in exercise of writ

jurisdiction under Article 226 of the Constitution. The Court

reiterated the circumstances in which the power can be

exercised. The Court observed as under: “27.  The entire basis of action under Section 144 is  provided by the urgency of the

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situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with  a  view  to secure the  public  weal  by maintaining  public  peace  and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as  such  it  may become necessary for the Executive Magistrate to override temporarily  private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.  …. In other words, the Magistrate’s action should be directed against the wrong­doer rather than the wronged. Furthermore, it  would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a  minor section of the community rather than prevent a larger section more vociferous and militant. 33.  ...It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.”

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(emphasis supplied)

114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of

Police,  Calcutta,  (1983) 4 SCC 522,  a Bench of  three Judges

expressed doubts about the dicta in the  Gulam Abbas  case

(supra) on the nature of the order under Section 144, Cr.P.C. but

reiterated that repetitive orders under Section 144, Cr.P.C. would

be an abuse of power. This Court observed as follows: “16…. The scheme of that section does not contemplate repetitive  orders  and  in case the situation  so  warrants steps  have to  be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act.  If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code.”

(emphasis supplied)

115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court

emphasised the safeguards under Section 144, Cr.P.C. and the

circumstances under which such an order can be issued.  

116. The learned counsel on behalf of the Petitioners vehemently

contested the power of the Magistrate to pass the aforesaid

orders under Section 144, Cr.P.C. as there existed no incumbent

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situation of emergency. It was argued that such orders passed in

mere anticipation or  apprehension cannot be sustained  in  the

eyes of law. As explained above, the power under Section 144,

Cr.P.C. is a preventive power to preserve public order. In Babulal

Parate case (supra), this Court expressly clarified that this power

can  be exercised  even  where there exists  an  apprehension  of

danger. This Court observed as under:

“25. The language of Section 144 is somewhat different. The test laid down in the section is not merely “likelihood” or “tendency”. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc.  The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.”

(emphasis supplied)

117. In view of the language of the provision and settled law, we are

unable to accept the aforesaid contention.  

118. Further, learned  senior  counsel  Mr.  Kapil  Sibal expressed  his

concern that in the  future  any State  could  pass such  type of

blanket  restrictions, for  example, to  prevent opposition parties

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from contesting or participating in elections. In this context, it is

sufficient to note that the power under Section 144, Cr.P.C.

cannot be used as a tool to prevent the legitimate expression of

opinion or grievance or exercise of  any democratic  rights.  Our

Constitution protects the expression of divergent views, legitimate

expressions and disapproval,  and this  cannot be  the basis  for

invocation of Section 144, Cr.P.C. unless there is sufficient

material to show that there is likely to be an incitement to

violence or threat to public safety or danger. It ought to be noted

that provisions of Section 144, Cr.P.C. will only be applicable in a

situation of emergency  and for the purpose of preventing

obstruction and annoyance or injury to any person lawfully

employed  [refer to  Babulal Parate case  (supra)]. It is enough to

note that sufficient safeguards exist in Section 144, Cr.P.C.,

including the presence of judicial review challenging any abuse of

power under the Section, to allay the apprehensions of the

petitioner.    

119. The Petitioners have also contended that ‘law and order’ is of a

narrower ambit than ‘public order’ and the invocation of ‘law and

order’ would justify a narrower set of restrictions under Section

144, Cr.P.C.

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120. In this context,  it  is pertinent for us to emphasize the holding

rendered by a five­Judge Bench of this court in  Ram Manohar

Lohia v. State of Bihar,  AIR 1966 SC 740, wherein this Court

emphasised the difference between “public order” and “law and

order” situation. This Court observed as under:

“55.  It  will thus  appear that just  as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an  act  may  affect law  and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.”

(emphasis supplied)

121. This Court therein held that a mere disturbance of law and order

leading to disorder may not necessarily lead to a breach of public

order. Similarly, the seven­Judge Bench in Madhu Limaye case

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(supra) further elucidated as to when and against  whom the

power under Section 144, Cr.P.C. can be exercised by the

Magistrate. This Court held therein, as under:

“24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences.  As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is  not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application…. Disturbances of public tranquillity, riots and affray lead to subversion  of public  order  unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key­note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those  who attempt to prevent the exercise of legal rights by others or imperil the public safety and health.  If  that be so the matter must  fall within the restrictions which the Constitution itself visualizes as permissible in the interest  of  public  order, or in the interest of the general public. We may say,

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however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.”

(emphasis supplied)

122. This  Court in  Ramlila  Maidan Incident, In re  case  (supra)

further enunciated upon the aforesaid distinction between a

“public order” and “law and order” situation:

“44. The distinction between “public order” and “law and order” is a fine one, but nevertheless clear.  A restriction imposed with “law and order” in mind would be least intruding into the guaranteed freedom while “public order” may qualify for a greater degree of restriction since public order is a matter of even greater social concern.

…

45.  It is keeping this distinction in mind, the legislature, under Section 144 CrPC, has empowered the District Magistrate, Sub­ Divisional  Magistrate or any other  Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this section exists and immediate prevention and/or speedy remedy is desirable.  By virtue of Section 144­A CrPC, which itself was introduced by Act 25 of 2005 [Ed.: The Code of Criminal Procedure (Amendment) Act, 2005.] , the District Magistrate has

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been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place,  where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order. …”

(emphasis supplied)

123. In view of the above, ‘law and order’, ‘public order’ and ‘security

of  State’  are  distinct legal  standards and  the  Magistrate  must

tailor the restrictions depending on the nature of the situation. If

two families quarrel over irrigation water, it might breach law and

order, but in a situation where two communities fight over the

same, the situation might transcend into a public order situation.

However, it has to be noted that a similar approach cannot be

taken to remedy the aforesaid two distinct situations. The

Magistrate cannot apply a straitjacket formula without assessing

the gravity of the prevailing circumstances; the restrictions must

be proportionate to the situation concerned.

124. Learned senior counsel, Mr. Kapil Sibal also contended that an

order under Section 144, Cr.P.C. cannot be issued against the

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public  generally  and  must  be specifically intended against the

people or the group which is apprehended to disturb the peace

and tranquillity. This Court in the Madhu Limaye case (supra),

has clarified that such an order can be passed against either a

particular individual  or the  public in  general.  This  Court  was

aware that, at times, it may not be possible to distinguish

between  the  subject  of  protection under these  orders  and  the

individuals against whom these prohibitory orders are required to

be passed:

“27.… Ordinarily the order would be directed against a person found acting or likely to act in a particular way.  A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks  mentioned  in the section.  A general order is  thus justified but if  the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law.”

 (emphasis supplied)

125. The counsel  on behalf  of the Petitioners have argued that the

validity of the aforesaid restrictions has to be tested on its

reasonableness. The restrictions imposed must be proportionate

to the proposed/perceived threat. In the context of  restrictions

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imposed by way of orders passed under Section 144, Cr.P.C., this

Court, in  Ramlila Maidan Incident  case (supra), held that an

onerous duty is cast upon the concerned Magistrate to first

assess the perceived threat and impose the least invasive

restriction possible. The concerned Magistrate is duty bound to

ensure that the restrictions should never be allowed to be

excessive either in  nature  or in time.  The relevant  portion is

extracted below:

“39. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other.  It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty...

   …

58. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance.  In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in  nature or in duration. The most onerous duty that is cast upon the

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empowered officer by the legislature is that the perception of threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility.”

(emphasis supplied)

126. As  discussed  above, the decisions of this Court in the  Modern

Dental College  case  (supra) and  K.S. Puttaswamy (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 under Section

144, Cr.P.C., imposing restrictions, cannot be a subject matter of

privilege. Moreover, material facts must be recorded in the order

itself.  On the other hand, the learned Solicitor General argued

that the empowered officers were in the best position to know the

situation on the ground and accordingly the aforesaid orders

were passed. There existed sufficient speculation on the ground

to suggest abrogation of Article 370, and the respective

Magistrates, being aware of the circumstances, imposed the

aforesaid restrictions in a periodic manner, indicating due

application of mind. The learned Solicitor General further argued

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that this Court cannot sit in appeal over the order passed by the

magistrate, particularly when there is no imputation of mala fide.

128. To put a quietus to the aforesaid issue it is pertinent to

reproduce and rely on a relevant extract from the  Ramlila

Maidan Incident, In re case (supra):

“56.  Moreover,  an order under Section 144 CrPC being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case.  This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of  CrPC, such an order is revisable and is subject to judicial  review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In Praveen Bhai Thogadia [(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned.  It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimisation by those in power.  Normally,

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interference should be the exception and not the rule.”

(emphasis supplied)

129. We may note that orders passed under Section 144, Cr.P.C. have

direct consequences upon the fundamental rights of the public in

general. Such a power, if used in a casual and cavalier manner,

would result in severe illegality. This power should be used

responsibly, only as a measure to preserve law and order. The

order is open to judicial review, so that any person aggrieved by

such an action can always approach the appropriate forum and

challenge the same. But, the aforesaid means of judicial review

will stand crippled if the order itself is unreasoned or un­notified.

This Court, in the case of Babulal Parate (supra), also stressed

upon the requirement of having the order in writing, wherein it is

clearly indicated that opinion formed by the Magistrate was

based upon the material facts of the case. This Court held as

under:

“9. Sub­section (1) confers powers not on the executive but on certain Magistrates…Under sub­section  (1) the Magistrate  himself  has to form an opinion that there is sufficient ground for proceeding under this section

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and immediate prevention or speedy remedy is desirable. Again the sub­section requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The sub­section further enumerates the particular activities with regard  to  which  the  Magistrate is  entitled to place restraints.”

(emphasis supplied)

130. While passing orders under Section 144, Cr.P.C., it is imperative

to indicate the material facts necessitating passing of such

orders. Normally, it should be invoked and confined to a

particular area or some particular issues. However, in the

present case, it is contended by the Petitioners that the majority

of the  geographical  area of the erstwhile  State  of  Jammu and

Kashmir  was  placed  under orders  passed  under  Section  144,

Cr.P.C. and the passing of these orders need to be looked at in

this perspective. In response, it  is the case of the Respondent,

although it has not been stated in clear terms, that it is an issue

of national security and cross border terrorism. Before we part,

we need to caution against the excessive utility of the

proportionality doctrine in the matters of national security,

sovereignty and integrity.  

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131. Although, the Respondents submitted that this Court cannot sit

in appeal or review the orders passed by the executive,

particularly those pertaining to law and order situation, the scope

of judicial review with respect to law and order issues has been

settled by this Court. In  State of Karnataka v. Dr. Praveen

Bhai Thogadia,  (2004) 4 SCC 684, this Court observed,

specifically in the context of Section 144, Cr.P.C., as follows:  “6.  Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. …… Therefore, whenever the authorities concerned in charge of law and order find that a person’s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings.

7... If they feel that the presence or participation of any person in the meeting or congregation would be objectionable, for some patent  or latent reasons  as  well  as the  past track record of such happenings in other places involving  such participants,  necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action

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necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences it may result in if not prevented forthwith, cannot be lost sight of.  The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life ­ preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining  law and order,  and  interposition of courts   unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power, and interference as a matter of course and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent…”  

(emphasis supplied)

132. It is true that we do not sit in appeal, however, the existence of

the power of judicial review is undeniable. We are of the opinion

that it is for the Magistrate and the State to make an informed

judgement about the likely threat to public peace and law and

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order. The State is best placed to make an assessment of threat

to public peace and tranquillity or law and order. However, the

law requires them to state the material facts  for invoking this

power. This  will enable judicial scrutiny  and  a verification  of

whether there are sufficient facts to justify the invocation of this

power.

133. In a situation where fundamental rights of the citizens are being

curtailed, the same cannot be done through an arbitrary exercise

of power; rather it should be based on objective facts. The

preventive/remedial measures under Section 144, Cr.P.C. should

be based on the type of exigency, extent of territoriality, nature of

restriction and the duration of the same. In a situation of

urgency, the authority is required to satisfy itself of such material

to base its opinion on for the immediate imposition of restrictions

or measures which are preventive/remedial. However, if the

authority  is to consider imposition of restrictions over a  larger

territorial area or for a longer duration, the threshold

requirement is relatively higher.  

134. An order passed under Section 144, Cr.P.C. should be indicative

of  proper  application of  mind,  which  should  be  based  on the

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material  facts and the remedy directed. Proper reasoning links

the application of mind of the officer concerned, to the

controversy involved and the conclusion reached. Orders passed

mechanically or in a cryptic manner cannot be said to be orders

passed in accordance with law.

135. During the course of hearing, on 26.11.2019, the learned

Solicitor General sought the permission of this Court to produce

certain confidential documents to be perused by this Court.

However, he objected to revealing certain documents to the

Petitioners, claiming sensitivity and confidentiality. Learned

senior counsel Mr. Kapil Sibal stated that the Court could

assume the existence of such intelligence inputs and materials.

In view of such stand, we have not gone into the adequacy of the

material placed before this Court; rather, we have presumed

existence of the same.  

136. One of the important criteria to test the reasonableness of such a

measure is to see if the aggrieved person has the right to make a

representation  against such  a restriction. It is a fundamental

principle of law that  no party can be deprived of his liberty

without being afforded a fair, adequate and reasonable

opportunity of hearing. Therefore, in a situation where the order

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is silent on the material facts, the person aggrieved cannot

effectively challenge the same. Resultantly, there exists no

effective mechanism to judicially review the same. [See State of

Bihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the

same, it is imperative for the State to make such orders public so

as to make the right available under Section 144(5),  Cr.P.C. a

practical reality.  

137. One thing to remember is that no mala fide has been alleged by

the Petitioners. It was not denied by the Petitioners that the State

has the power to pass such restrictive order.  Additionally, the

Respondents contended that the historical background of the

State­  cross  border terrorism, infiltration of  militants,  security

issues, etc., cannot be forgotten and must be kept in mind while

testing the legality of the orders. Further, the Respondent

submitted that the  orders  were  passed in the  aforementioned

context and in the anticipated threat to law and order, to prevent

any loss of life, limb and property. However, these orders do not

explain the aforesaid aspects.  

138. Although the restrictions have been allegedly removed on

27.09.2019, thereby rendering the present exercise into a

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virtually academic one, we cannot ignore non­compliance of law

by the State. As learned senior counsel Mr. Kapil Sibal

submitted, this case is not just about the past or  what  has

happened in the erstwhile State of Jammu and Kashmir, but also

about the future, where this Court has to caution the

Government. Hence, we direct that the authorities must follow

the principles laid down by this Court and uphold the rule of law.

139. It is contended by the  Petitioners that  while the  Respondents

stated that there are no prohibitory orders during the day and

there are certain restrictions in certain areas during the night, on

the ground, the situation is different as the police is still

restricting the movement of the people even during the day. If

that is so, it is not proper and correct for the State to resort to

such type of acts. A Government, if it thinks that there is a threat

to the law and order situation or any other such requirement,

must follow the procedure laid down by law, taking into

consideration the rights of the citizens, and  pass appropriate

need­based orders.  In view of the same, appropriate directions

are provided in the operative part of this judgment.

140. Before parting we summarise the legal position on Section 144,

Cr.P.C as follows:

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i. The power under Section 144, Cr.P.C., being remedial as

well  as  preventive, is exercisable  not  only  where there

exists present danger, but also when there is an

apprehension of danger. However, the danger

contemplated should be in the nature of an “emergency”

and for the purpose of preventing obstruction and

annoyance or injury to any person lawfully employed.  ii. The power under Section 144, Cr.P.C cannot be used to

suppress legitimate expression of opinion or grievance or

exercise of any democratic rights. iii. An order passed under Section 144, Cr.P.C. should state

the material facts to enable judicial review of the same.

The power should be exercised in a  bona fide  and

reasonable manner, and the same should be passed by

relying on the material facts, indicative of application of

mind. This will enable judicial scrutiny of the aforesaid

order.  iv. While  exercising the  power  under  Section 144,  Cr.P.C.

the Magistrate is duty bound to balance the rights and

restrictions based on the principles of proportionality and

thereafter apply the least intrusive measure.

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v. Repetitive orders under Section 144, Cr.P.C. would be an

abuse of power.

H. FREEDOM OF THE PRESS    

141. The Petitioner in W.P. (C) No. 1031 of 2019 has filed the petition

basing her contention on the following factual premise, as

averred:  

13. Writ Petition (Civil) No. 1031 of 2019 was filed on  10­08­2019  under  Article  32  of the Constitution of India by the Executive Editor of the newspaper “Kashmir Times”, which publishes two editions daily, one from Jammu and another from Srinagar. The English newspaper, Kashmir Times, was founded in 1954 as a news weekly. It was later converted to a daily newspaper in 1962 and has regularly been in print and circulation ever since. Kashmir Times is a widely read English newspaper in Jammu and Kashmir, and also has significant readership in the neighbouring States of Punjab, Delhi and Himachal Pradesh.

14. On 04­08­2019, sometime during the day, mobile phone networks, internet services, and landline phones were all  discontinued  in the Kashmir valley and in some districts of Jammu and Ladakh. No formal orders under which such action was taken by the Respondents were communicated to the affected population, including the residents of the Kashmir Valley. This  meant that the people  of  Kashmir  were plunged into a communication blackhole and an information blackout. The actions of the

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respondents have had a debilitating and crippling effect on newsgathering, reporting, publication, circulation and information dissemination, and have also resulted in freezing of web portals and news websites.

15.  From the morning of 05­08­2019, with a heavy military presence, barricades and severance of all communication links, the state of Jammu and Kashmir was placed under  de facto curfew.   At the same time, on 05­08­ 2019, the Constitution (Application to Jammu and Kashmir) order, 2019, C.O. 272 was published in The Gazette of India, vide which under the powers vested by Article  370(1)  of the  Constitution  of India,  Article  367(4)  was added to the Constitution. Also on 05­08­ 2019, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06­08­2019, the said Bill was passed by the Lok Sabha. The President’s assent  was  given  to the  Bill on  09­08­2019. The Gazette Notification, dt. 09­08­2019 states that the Jammu and Kashmir Reorganisation Act, 2019, will come into effect from 31st

October, 2019, and that there shall be a new Union Territory of Jammu and Kashmir. All of this was carried out while the State of Jammu and Kashmir was in a lockdown and silenced through a communication shutdown.

16. In such Circumstances the Kashmir Times’ Srinagar  edition  could  not  be  distributed  on 05­08­2019 and it could not be published thereafter from 06­08­2019 to 11­10­2019, as newspaper publication necessarily requires news gathering  by reporters traveling  across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdown­including communication and internet blackout­ and severe curbs on

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movement enforced by the respondents, the Petitioner was prevented and hindered from carrying out  her profession and work. Even after 11­10­2019 only a truncated copy of the newspaper  is being published because of the severe restrictions in place even today (internet services and SMS services are completely shut down even after 115 days). The new portal/website is frozen till date.  

142. There is no doubt that the importance of the press is well

established  under Indian  Law.  The freedom of the  press is  a

requirement in any democratic society for its effective

functioning. The first case which dealt with the freedom of the

press can be traced back to Channing Arnold v. The Emperor,

(1914) 16 Bom LR 544, wherein the Privy Council stated that:

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

 143. During the drafting of our Constitution, B. N. Rau, while

commenting on the amendments by Jaya Prakash Narayan, who

had proposed a separate freedom of press, had commented in the

following manner:

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

144. Thereafter, many judgments of this Court including  Bennett

Coleman v. Union of India, (1972) 2 SCC 788, Indian Express

(supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR

842 have expounded on the right of freedom of press and have

clearly enunciated the importance of the aforesaid rights in

modern society. In view of the same, there is no doubt that

freedom of the press needs to be considered herein while dealing

with the issue of the case at hand.   

 145. From the aforesaid factual averment, we may note that the

Petitioner in W.P. (C) No. 1031 of 2019, with respect to the

present issue, does not  impugn  any specific order of the

government restricting the freedom of the press or restricting the

content of the press. The allegation of the aforementioned

Petitioner is that the cumulative effect of various other

restrictions, such as the imposition of Section 144, Cr.P.C. and

restriction on internet and communication, has indirectly

affected the freedom of the press in the valley.

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 146. There is no doubt that the freedom of the press is a valuable and

sacred right enshrined under Article 19(1)(a) of the Constitution.

This right is required in any modern democracy without which

there cannot be transfer of information or requisite discussion for

a  democratic society.  Squarely  however, the  contention  of the

Petitioner rests on the chilling effects alleged to be produced by

the imposition of restrictions as discussed above.  

 147. Chilling  effect  has  been utilized in Indian Jurisprudence as  a

fairly recent concept. Its presence in the United States of America

can be traced to the decision in Weiman v. Updgraff, 344 U.S.

183. We may note that the argument of chilling effect has been

utilized in various contexts, from being purely an emotive

argument to a substantive component under the free speech

adjudication. The usage of the aforesaid principle is chiefly

adopted for impugning  an  action  of the  State,  which  may  be

constitutional,  but  which imposes  a  great  burden  on the free

speech. We may note that the argument of chilling effect, if not

tempered judicially, would result in a “self­proclaiming

instrument”.   

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148. The principle of chilling effect was utilized initially in a limited

context, that  a  person could  be restricted from exercising  his

protected right  due to the  ambiguous  nature  of  an  overbroad

statute. In this regard,  the chilling effect was restricted to the

analysis  of the  First  Amendment right.  The work of  Frederick

Schauer provides a detailed analysis in his seminal work on the

First Amendment.22 This analysis was replicated in the context of

privacy and internet usage in a regulatory set up by Daniel J.

Solove.  These  panopticon concerns have  been accepted  in the

case of K.S. Puttaswamy (Privacy­9J.) (supra).  

149. We need to concern ourselves herein as to theoretical question of

drawing lines as to when a regulation stops short of impinging

upon free speech. A regulatory legislation will  have a direct or

indirect impact on various rights of different degrees. Individual

rights cannot be viewed as silos, rather they should be viewed in

a cumulative manner which may be affected in different ways.

The technical rule of causal link cannot be made applicable in

the case of human rights. Human rights are an inherent feature

of every human and there is no question of the State not

22  Frederick Schauer,  Fear, Risk and the First Amendment: Unraveling the Chilling Effect (1978).

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providing for these rights. In one sense, the restrictions provided

under Article 19(2) of the Constitution follow a utilitarian

approach  wherein individualism  gives  way for commonality of

benefit, if such restrictions are required and demanded by law. In

this context, the test of ‘direct impact’ as laid down in  A.K

Gopalan v. State of Madras,  AIR 1950 SC 27, has been

subsequently widened in Rustom Cavasjee Cooper v. Union of

India, 1970 (1) SCC 248, wherein the test of ‘direct and

inevitable consequence’ was propounded. As this is not a case

wherein a detailed analysis of chilling effect is required for the

reasons given below, we leave the question of law open as to the

appropriate standard for establishing causal link in a challenge

based on chilling effect.

150. The  widening of the ‘chilling effect doctrine’  has always  been

viewed with judicial scepticism. At this juncture, we may note the

decision  in  Laird v.  Tantum,  408 U.S.  1  (1972),  wherein  the

respondent brought an action against the authorities to injunct

them from conducting surveillance of lawful and peaceful civilian

political activity, based on the chilling effect doctrine. The United

States  Supreme Court, in its  majority  decision,  dismissed the

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plea of the respondent on the ground of lack of evidence to

establish such a claim. The Court observed that:

“Allegations of  a subjective "chill"  are not  an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

Therefore, to say that the aforesaid restrictions were

unconstitutional because it has a chilling effect on the freedom of

press generally is to say virtually nothing at all or is saying

something that is purely speculative, unless evidence is brought

before the Court to enable it to give a clear finding, which has not

been placed on record in the present case.  [refer to  Clapper v

Amnesty Int’l, USA, 568 U.S. 113 (2013)]

151. In this context, one possible test of chilling effect is comparative

harm. In this frame­work, the Court is required to see whether

the impugned restrictions, due to their broad­based nature, have

had a restrictive effect on similarly placed individuals during the

period. It is the contention of the Petitioner that she was not able

to publish her newspaper from 06­08­2019 to 11­10­2019.

However, no evidence was put forth to establish that such other

individuals were also restricted in publishing newspapers in the

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area.  Without  such evidence  having  been placed on  record, it

would be impossible to distinguish a legitimate claim of chilling

effect from a mere emotive argument for a self­serving purpose.

On the other hand, the learned Solicitor General has submitted

that there were other newspapers which were running during the

aforesaid time period. In view of these facts, and considering that

the aforesaid Petitioner has now resumed publication, we do not

deem it fit to indulge more in the issue than to state that

responsible Governments are required to respect the freedom of

the press at all times. Journalists are to be accommodated  in

reporting  and  there is  no justification  for  allowing  a  sword of

Damocles to hang over the press indefinitely.     

I. CONCLUSION    152. In this view, we issue the following directions:

a. The Respondent State/competent authorities are directed to

publish all orders in force and any future orders  under

Section 144, Cr.P.C and for suspension of telecom services,

including internet, to enable the affected persons to

challenge it before the High Court or appropriate forum. b. We declare that the freedom of speech and expression and

the freedom to practice any profession or carry on any

trade, business or occupation over the medium of internet

enjoys constitutional protection under Article 19(1)(a)  and

Article 19(1)(g). The restriction upon such fundamental

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rights  should  be in  consonance  with the  mandate  under

Article 19 (2) and (6) of the Constitution, inclusive of the test

of proportionality.  c. An order suspending internet services indefinitely is

impermissible under the Temporary Suspension of Telecom

Services (Public Emergency or Public Service) Rules, 2017.

Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension

Rules, must adhere to the principle of proportionality and

must not extend beyond necessary duration. e. Any order suspending internet under the Suspension Rules

is subject to judicial review based on the parameters set out

herein.  f. The existing Suspension Rules neither provide for a periodic

review nor a time limitation for an order issued under the

Suspension Rules. Till this gap is filled, we  direct that  the

Review Committee constituted under Rule 2(5) of the

Suspension Rules  must  conduct  a  periodic review within

seven working days of the previous review, in terms of the

requirements under Rule 2(6). g. We  direct the respondent State/competent authorities to

review all orders suspending internet services forthwith. h. Orders  not in  accordance  with the law  laid  down above,

must be revoked. Further, in future, if there is a necessity to

pass fresh orders, the law laid down herein must be

followed. i. In any case, the State/concerned authorities are directed to

consider forthwith allowing government websites,

localized/limited e­banking facilities, hospitals services and

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other essential services, in those regions, wherein the

internet services are not likely to be restored immediately. j. The power under Section 144, Cr.P.C.,  being remedial  as

well as preventive, is exercisable not only where there exists

present danger, but also when there is an apprehension of

danger. However, the danger contemplated should be in the

nature of an “emergency” and for the purpose of preventing

obstruction and annoyance or injury to any person lawfully

employed.  k. The  power  under  Section 144,  Cr.P.C cannot  be  used to

suppress legitimate  expression of  opinion or  grievance  or

exercise of any democratic rights. l. An order passed under Section 144, Cr.P.C. should state

the material facts to enable judicial review of the same. The

power should be exercised  in a  bona fide  and reasonable

manner, and the same should be passed by relying on the

material facts, indicative  of  application of  mind.  This will

enable judicial scrutiny of the aforesaid order.  m.While exercising the power under Section 144, Cr.P.C., the

Magistrate is duty bound to balance the rights and

restrictions based on the principles of proportionality and

thereafter, apply the least intrusive measure. n. Repetitive orders under Section 144, Cr.P.C. would be an

abuse of power. o. The Respondent State/competent authorities are directed to

review forthwith the need  for continuance of  any existing

orders passed under Section 144, Cr.P.C in accordance with

law laid down above.  

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153. The Writ Petitions are disposed of in the afore­stated terms. All

pending applications are also accordingly disposed of.

     ..............................................J.               (N.V. RAMANA)

..............................................J. (R. SUBHASH REDDY)

..............................................J.  (B. R. GAVAI)

 NEW DELHI; JANUARY 10, 2020

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