2020 (1) TMI 1387 - SC - Indian Laws

Right to Life- striking of a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner - 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 - what do we need more, liberty or security? Whether the Government can claim exemption from producing all the orders passed Under Section 144, Code of Criminal Procedure and other orders under the Suspension Rules? - HELD THAT - 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 - 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. 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? - HELD 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 - 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. The Respondent-State 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 - 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 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. Whether the Government's action of prohibiting internet access is valid? - HELD THAT - 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 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 - 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. 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. Whether the imposition of restrictions Under Section 144, Code of Criminal Procedure were valid? - HELD THAT - Section 144, Code of Criminal Procedure is one of the mechanisms that enable the State to maintain public peace. It forms part of the Chapter in the Code of Criminal Procedure dealing with Maintenance of Public Order and Tranquillity and is contained in the sub-chapter 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 - Section 144, Code of Criminal Procedure 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. The '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. The legal position on Section 144, Code of Criminal Procedure as follows i. The power Under Section 144, Code of Criminal Procedure, 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, Code of Criminal Procedure cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. iii. An order passed Under Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. v. Repetitive orders Under Section 144, Code of Criminal Procedure would be an abuse of power. Whether the freedom of press of the Petitioner was violated due to the restrictions? - HELD THAT - 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. Chilling effect has been utilized in Indian Jurisprudence as a fairly recent concept. 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 self-proclaiming instrument . - 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. One possible test of chilling effect is comparative harm. In this frame-work, 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. Thus, Petition disposed off with following Directions issued a. The Respondent State/competent authorities are directed to publish all orders in force and any future orders Under Section 144, Code of Criminal Procedure 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 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 e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately. j. The power Under Section 144, Code of Criminal Procedure, 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, Code of Criminal Procedure cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. l. An order passed Under Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure, 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, Code of Criminal Procedure 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, Code of Criminal Procedure in accordance with law laid down above.

Summary

Issues Involved:
1. Exemption from producing orders under Section 144, Code of Criminal Procedure (CrPC) and Suspension Rules.
2. Freedom of speech and expression and the right to practice any profession or trade over the internet.
3. Validity of the Government's action prohibiting internet access.
4. Validity of restrictions imposed under Section 144, CrPC.
5. Violation of freedom of the press due to restrictions.

Detailed Analysis:

1. Exemption from Producing Orders:
The Court emphasized the necessity for the State to produce orders restricting movement and communication. The State's refusal to produce all orders, citing difficulties, was not accepted. The Court mandated the production of orders, highlighting the right to information as a facet of freedom of speech and expression under Article 19. The State must act transparently and responsibly, ensuring orders are available for judicial review unless specific grounds of privilege are claimed.

2. Fundamental Rights Under Part III and Restrictions Thereof:
The Court acknowledged the importance of the internet for freedom of speech and trade, recognizing these rights under Article 19(1)(a) and 19(1)(g). Restrictions on these rights must comply with Article 19(2) and 19(6), ensuring they are reasonable and proportionate. The Court emphasized the necessity of balancing liberty and security, with restrictions being the least intrusive measures necessary to achieve the intended goal.

3. Internet Shutdown:
The Court scrutinized the procedural aspects of internet shutdowns under the Suspension Rules, emphasizing the need for reasoned orders and periodic review. The Court directed that orders must be temporary and proportionate, with a periodic review within seven working days. The Court also mandated the publication of orders to enable judicial review and directed the State to consider allowing essential services through localized internet access.

4. Restrictions Under Section 144, CrPC:
The Court reiterated that Section 144, CrPC, is a preventive measure for urgent situations, not to be used to suppress legitimate expression or democratic rights. Orders must state material facts and be based on objective assessments, ensuring they are proportionate and the least intrusive measures. The Court highlighted the need for judicial review of such orders and directed the State to review existing orders for compliance with these principles.

5. Freedom of the Press:
The Court acknowledged the indirect impact of restrictions on the freedom of the press due to internet shutdowns and movement restrictions. While the Petitioner failed to provide evidence of a chilling effect on other newspapers, the Court emphasized the need for the State to respect press freedom and accommodate journalists. The Court cautioned against indefinite restrictions on the press and highlighted the importance of a free press in a democratic society.

Conclusion:
The Court issued several directives, including the publication of orders, periodic review of internet shutdowns, and adherence to the principles of proportionality and least intrusive measures. The Court emphasized the need for transparency, judicial review, and respect for fundamental rights, particularly in the context of freedom of speech, trade, and the press. The State was directed to review existing orders and ensure compliance with the legal principles laid down in the judgment.