Full Text of Justice Ramana’s decision on restrictions in Kashmir

Following are the key excerpts from the Justice Ramana’s observations from the Supreme Court order on curbs in Kashmir:

Before I begin, I am reminded of a few lines from the classic “A Tale of Two Cities” by Charles Dickens ;

“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.”

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 liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.

Justice Ramana on liberty versus national security?

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 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.

ISSUES FRAMED BY THE COURT: 10.  Based on the facts and arguments raised following issues were framed by the Court:

1. 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?
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?

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

1. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
2. Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

ON PRODUCTION OF ORDERS: 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 freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. [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 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 that are completely dependent on the internet. Such a right of trade through the 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. 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. 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.

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 the extent rather than the existence of the power to restrict.

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 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 territorial extent of the restriction, the stage of an emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction should consider appropriateness and necessity and least restrictive measures before a restriction is imposed.

INTERNET SHUTDOWN

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. The requirement under Rule 2(2) of suspension rules must be read to extend not only to orders passed by a competent authority, but also to those passed by an authorised officer which is to be sent for subsequent confirmation by 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. The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules.
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 as contemplated under Rule 2(2) must not be a mere formality, but must indicate the independent application of mind by the competent authority to the order passed by the authorised officer, changed circumstances if any, etc.

92 . Keeping in mind the wordings of the section, and the above two pronouncements of this Court, what emerges is that the prerequisite for an order to be passed under Section 5 subsection (2) , and therefore the Suspension Rules, is the occurrence of a “public emergency” or “in the interest of public safety”.

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, which must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy. Having said so, we may note that the aforesaid Suspension Rules have certain gaps, which are required to be considered by the legislature.

Justice Ramana on 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.”

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 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.

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 circumstance; the restriction must be proportionate to the concern.

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.
130. In a situation where fundamental rights of the citizens are being curtailed the same cannot be done in an arbitrary exercise of power, rather should be based on objective facts. The preventive/ remedial measures under Section 144 of Cr.P.C should be based on the type of exigency, extent of territoriality, nature of restrictions and the duration of the same. In a situation of urgency, the authority is required to satisfy himself of such material to base his opinion on
     immediate imposition so as take immediate remedial measures.

However, if the authority is to consider imposition of restrictions over a larger territorial area or a longer duration, the threshold requirement is relatively higher.

Justice Raman on Feedom of Press

146. There is no doubt trhat the freedom of 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 discussion for a democratic society. Squarely 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. Upd graff, 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 12 aforesaid principles 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 a chilling effect, if not tempered judicially, would result in a “self-proclaiming instrument”.

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 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 the 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 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.

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 broad-based 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 06 – 08 – 2019 to 11 – 10 – 2019.

However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self – serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period.

15 In view of these facts, 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 the 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 in allowing a sword of Damocles to hang over the press indefinitely.

CONCLUSION

152. In this view, we issue the following directions:
153. 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.
154. 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 rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.

2017. 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.
2018. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
2019. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
2020. 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).
2021. We direct the respondent-State/competent authorities to review all orders suspending internet services forthwith.
2022. 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.
2023. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospital services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
2024. 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.
2025. The power under Section 144, Cr.P.C cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.
2026. 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 the application of mind. This will enable judicial scrutiny of the aforesaid order.
2027. 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.
2028. Repetitive orders under Section 144, Cr.P.C would be an abuse of power.
2029. 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.
2030. The Writ Petitions are disposed of in the afore – stated terms. All pending applications are also accordingly disposed of.

Download the PDF