On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954.
On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquillity under Section 144 of CrPC.
Due to this, journalist movements were restricted and this was challenged under Article 19 of the Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation.
In this context, in the Supreme Court, legality of internet shutdown and movement restrictions were challenged under Article 32 of the Constitution.
The petition was filed by Ms. Anuradha Bhasin, the executive editor of the Kashmir Times Srinagar Edition. She argued that the internet is absolutely essential for modern press and without which print media has come to “grinding halt”. And due to this, she had been unable to publish the newspaper since August 6.
She said that the government failed to give the reason as to necessity to pass the order, as required under Suspension Rules. Further, she contended that the orders were passed on mere apprehension of likelihood of danger to law and order. Moreover, law and order are not the same as public order and neither was it at risk when the orders were passed.
Another petition was filed by Mr. Ghulam Nabi Azad (Member of Parliament). He argued that the state cannot claim any exception or privilege before the courts to produce the orders.
Further, he said that national emergency can be declared in limited cases while in the present case neither “internal disturbances” or “external aggressions” was there which is required to declare an emergency.
To pass order under Section 144 of CrPC, there must be a “law and order” situation which in the present case there is neither any existing law and order issue nor apprehension.
Restrictions imposed should be specifically against the group of people apprehended to breach the peace and not the entire state must be bringing to halt.
The state should impose the least restrictive measures and must balance the fundamental rights of citizens with the safety of people.
And imposing restrictions on the internet, it impacts not only freedom of speech and expression but also freedom to carry any trade, profession or occupation.
1. Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?
The court cited the judgement passed in Ram Jethmalani v. Union of India, that in order to be Article 32 meaningful, the petitioners should be provided with all the relevant information necessary which is needed to articulate the case, and especially when the state has been in possession of information.
Article 19 can be interpreted in such a way where right to information is one of the important facets of freedom of speech and expression. The Court further said, that state cannot pass any law in a clandestine manner on mere apprehension of danger.
2. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
The court held that freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a).
The court has emphasized on its earlier judgements in which it has protected new medium of expression.
In Indian Express v. Union of India, it was held that freedom of print medium is a fundamental right under Article 19(1)(a).
In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, it was held that it is the right of citizens to exhibit films which is now protected under Article 19(1)(a).
The court in, catena of judgements, held freedom in speech as a fundamental right through various means of expression.
Nowadays, the internet is one of the major means to disseminate information and therefore, freedom of speech and expression through the internet is a fundamental right under Article 19(1)(a) and restrictions can be put in accordance with Article 19(2). )
The Court does not delve itself in deciding whether the right to access the internet is a fundamental right or not as none of the argued on that.
Court said that government can impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose.
The Court added that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.”
Lastly, the court opposed the state argument that selective internet sites cannot be banned due to lack of technology. As, if it is accepted, then the state has the power to do complete blockage every time and which cannot be accepted. Court would not only observe that while ensuring peace and tranquility, there is not an excessive burden on freedom of speech and expression.
3. Whether the Government’s action of prohibiting internet access is valid?
In the said judgement, the Hon’ble Supreme Court turned its attention to the procedural aspect of law & said procedural justice cannot be sacrificed on the altar of substantive justice.
The Hon’ble Court observed that the procedural mechanism laid for restrictions on the internet is two-fold: contractual and statutory. In the present case, the latter part is dealt with because it is more relevant to the case at hand. As the name suggests, statutory restrictions imply restrictions under The IT Act, 2000; CrPC, 1973, Telegraph Act.)
The Court said that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for blocking access of information as it blocks access to particular websites on the internet and not the whole of it.
There were eight orders placed before the Court. Four were passed by the Inspector General and other four by the Government of J&K. The Court said that any new restrictions have to be passed in accordance with the new order. Since all the orders were not presented before the Court, so the Court accordingly molded the relief in the operative portion.
4. Whether the imposition of restrictions under Section 144, CrPC were valid?
The Court said that Section 144 CrPC is one of the mechanisms that enable the State to maintain public peace by taking preventive measures to handle imminent public menaces or threats.
But the Section isn’t absolute rather it provides certain safeguards like prior inquiry before the exercising the power, and modifying/rescinding the order when the situation so warrants. The Supreme Court vividly discussed various judicial precedents regarding Section 144 of CrPC.
In State of Bihar v. Kamla Kant Mishra, the Supreme Court held the latter part of Section 144(6) as unconstitutional, because it didn’t provide constraints on the duration of the order.
In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, the SC highlighted the power under the Section 144 CrPC must be exercised in urgent situations and “the emergency must be sudden and the consequences sufficiently grave”; it should be exercised in a judicial manner which can withstand judicial scrutiny.
Apart from this case, there are several other cases in which the Court reiterated the circumstances when Section 144 can be imposed.
In Gulam Abbas v. State of UP, the Court said that an order passed under Section 144 CrPC is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution.
In Acharya Jagdishwaranand Avadhuta v. Commr. Of Police, Calcutta, the Court reiterated that repetitive powers under Section 144 of CrPC would be an abuse of power. The Court held that the power cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. The power under the said Section has to be exercised in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
To summarize, the Court held that the Section 144 of CrPC can be exercised when there exists present danger as well as apprehension of danger.
It can’t be used to suppress legitimate opinion or grievance or exercise of any democratic rights.
An order passed under Section 144 should state material facts to enable judicial review of the same.
Magistrate is duty bound to apply principle of proportionality on the restrictions and should balance the rights. Repetitive orders would be an abuse of power.
5. Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?
The Court said that the petitioners failed to offer any concrete evidence that the restrictions imposed restricted the freedom of press like publication of newspapers and the distribution of the same.
Since the petitioner failed to produce evidence therefore the Court couldn’t distinguish whether it was a legitimate claim for chilling effect or mere emotive argument for the purpose of self-fulfillment.
Now, the petitioner has resumed publication so the Court doesn’t want to unnecessarily indulge in the matter and therefore, the Court said that as responsible government, it should take care of the freedom of press at all times and journalists should be accommodated reporting and there shouldn’t be a sword hanging on the Press all the time.