The matters begin with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make their safe arrangements to go back. Afterward, educational institutions and offices were also shut down until further orders. On 4th August 2019 mobile connectivity, internet services, and landline were shut down until further orders.
On 5th August 2019, Constitutional Order No. 272 was passed by the Indian President applying all provisions of the India Constitution to Jammu and Kashmir and removed it from special status enjoyed since 1954. On the same day, due to prevailing circumstances, the District Magistrate passed the order limiting the movement and public gathering, apprehending breach of tranquility and peace under Section 144 of Code of Criminal Procedure (CrPC). Due to this, journalist movements were limited and this was challenged under Article 19 of the Indian Constitution which guarantees freedom of speech and expression and freedom to carry any occupation or trade. In this context, in the Apex Court, the lawfulness of internet shutdown and movement restrictions are challenged under Article 32 of the Indian Constitution.
The petition was filed by Ms. Anuradha Bhasin, the executive editor of the Kashmir Times Srinagar Edition. She argued that the internet is completely essential for modern press and without which print media has come to a “grinding halt”. And due to this, she had been not able to publish the newspaper since 6th August. She said that the government failed to give the reason as to the necessity to pass the order, as required under Suspension Rules. Moreover, she contended that the orders were passed on mere apprehension of the likelihood of danger to order and law. Further, law and order are not the same as public order and neither was it at risk when the orders were passed.
An intervenor argued that there is a need of balancing the measures necessary to maintain national security and curbing terrorism with the rights of citizens which has been taken up by courts of various jurisdictions. The state is justifying by saying the prevalent situation in Jammu and Kashmir and justifying merits rejections, as it will give the state too broad power to impose restrictions in such situations. It will subsume individual rights over social control. He submitted that restrictions imposed are in contravention of Indian National Telecom Policy, 2012. Lastly, he said that restrictions imposed were temporary in nature but are being imposed for more than a hundred days, which should be taken into consideration while deciding the matter.
Another intervenor argued that the necessity to test the order in reference to circumstances on which date the prevailing orders were passed. The necessity to publish order is part of natural justice and it also is made accessible to the public. The state cannot claim any privilege before the court for not producing judgments. Further, he said that the proportionality test was upheld by the court and must be seen that restrictions imposed on the fundamental rights of citizens are reasonable or not. He also 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”.
Further, the petition was filed by Mr. Ghulam Nabi Azad (Member of Parliament). He argued that the state cannot claim any privilege or exception before the courts to produce the orders. Further, he said that a national emergency can be declared in limited cases while in the present case neither “external aggressions” nor “internal disturbances” was there which is need to declare an emergency. To pass an order under Section 144 of the Code of Criminal Procedure (CrPC), there must be a “law and order” situation which in the instant case there is neither apprehension nor any existing law and order issue. Restrictions imposed should be specifically against the group of people apprehended to breach the peace and not the entire state must be brought to halt. The state should impose the least restrictive measures and must balance the fundamental rights of citizens with safeguarding the people. And imposing restrictions on the internet, it impacts not only freedom of speech and expression but also the freedom to carry any trade, occupation, or profession.
The following issues raised in the present case :
The court held that the state had to produce the order placing restrictions before the court. It had cited difficulty in determining the legality of the restriction imposed when the state refused to produce the order before the court. On the obligation of the state to disclose information, especially in the writ petition, the court cited the judgment 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 of the Constitution can be interpreted in such a way where the right to information is one of the vital facets of freedom of speech and expression. Moreover, the Court added that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” This mandates the state to safeguard the fundamental rights and does not away from them in a cavalier manner.
Further said, that state cannot pass any law in a clandestine manner on mere apprehension of danger. To this, the court adds that 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 ignorance and a people who mean to be their own Governors must arm themselves with the power which knowledge gives”. The court should take proactive orders in producing before the court unless there is a special privilege or countervailing public interest. But then, this is to be decided by the court that in every case as per the facts and circumstances that public privilege or interest can override the rights of the petitioner and that part of the order can be redacted. In the instant case, initially the state privilege but later on produced some orders citing some difficulty in producing all the orders. Thus, this cannot be a valid reason or ground to refuse to produce the order.
Further, the court held that freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a) of the Constitution. The court has emphasized its earlier judgments in which it has protected a new medium of expression. In Indian Express v. Union of India, 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 that are now protected under Article 19(1)(a). The court in, the catena of judgments, 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 as per Article 19(2).
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. The court would not only observe that while ensuring peace and tranquillity, but there also is not an excessive burden on freedom of speech and expression.
Further, the Court said that Section 144 Code of Criminal Procedure (CrPC) is one of the mechanisms that make able the State to maintain public peace by taking preventive measures to handle imminent public threats or menaces. But the Section isn’t absolute rather it provides some safety measures like prior inquiry before exercising the power and modifying or rescinding the order when the situation so warrants.
The Court held that Section 144 of the Code of Criminal Procedure (CrPC) can be exercised when there exists present danger and the 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 of CrPc should state material facts to enable judicial review of the same. The magistrate is duty-bound to apply the principle of proportionality on the restrictions and should balance the rights. Repetitive orders would be an abuse of power.
The petitioners contended that restrictions on communication and movement imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. The Court rejected this plea. Here, the Court said that the petitioners failed to offer any concrete evidence that the restrictions imposed restricted the freedom of press like the 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 thus the Court said that as a responsible government, it should take care of the freedom of the press at all times, and journalists should be accommodated reporting.