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TMI Blog2020 (1) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Writ Petition (Civil) Nos. 1031 and 1164 of 2019 - - - Dated:- 10-1-2020 - N.V. Ramana, R. Subhash Reddy And B.R. Gavai, JJ. For the Petitioner : Ms. Sumita Hazarika, AOR, Mr. Shadan Farasat, Adv., Mr. Nizam Pasha, Adv., Ms. Jahnavi Sindhu, Adv., Ms. Shruti Narayan, Adv., Mr. Siddharth, AOR For the Respondent : Mr. Debasis Misra, AOR, Mr. Tushar Mehta, SG, Mr. Ankur Talwar, Adv., Mr. Rajat Nair, Adv., Mr. Kanu Agrawal, Adv., Mr. B. V. Balaram Das, AOR, Mr. Tushar Mehta, SGMs. Shashi Juneja, Adv. Mr. Satyajeet Kumar, AOR, Mr. Anshuman Ashok, AORMs. Meenakshi Arora, Sr. Adv. Mr. Fuzail Ahmad Ayyubi, AOR, Ms. Deepali Dwivedi, Adv., Ms. Aditi Gupta, Adv., Mr. Mushtaque, Adv., Mr. Abdul Quadir, Adv., Ms. Rashmi, Adv., 2 Dr. Nishesh Sharma, Adv., Mr. Sahitya Singh, Adv. Mr. Harvinder Chowdhury, AOR Mr. Shadan Farasat, AOR, Mr. Gautam Bhatia, Adv., Ms. Vrinda Bhandari, Adv., Ms. Jahnavi Sindhu, Adv., Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines 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 Co-ordinate 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. 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes 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. 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 non-availability 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of the Magistrate Under Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, 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 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u 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, Code of Criminal Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 one-way communication, the internet makes two-way communication by which spreading of messages are very easy. The different cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy they could not place them on record. 12. At the same time, while the non-availability of orders was not denied by the Respondent-State, 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 Respondent-State placed on record only sample orders, citing difficulty in producing the numerous orders which were being withdrawn and modified on a day-to-day basis. The Respondent-State 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 Respondent-State. 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 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 obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 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 Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-clause 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. 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 furthera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant 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. 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 over-ruled 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 self-evident 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 zero-sum 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 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 funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows: 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right-holder (balancing stage). One important 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancing of different interests. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective and its impact upon fundamental rights. 19 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 sub-components 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 right-holder (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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted 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 opinion, suggested a four-pronged 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. 68. After applying the aforesaid doctrine in deciding the constitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in the K.S. Puttaswamy (Aadhaar-5J.) case (supra), reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the territorial extent of the restriction, the stage of emergen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 (Privacy-9J.) 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 Code of Criminal Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 in-charge 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 Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspension of services due to public emergency or public safety and record its findings whether the directions issued Under Sub-rule (1) are in accordance with the provisions of Sub-section (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 Sub-rule 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 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 twenty-four hours, failing which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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... 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 phone-tapping 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 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Code of Criminal Procedure. 105. These contentions require us to examine the scope of Section 144, Code of Criminal Procedure, 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 Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 107. 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. 108. The aforesaid safeguards in Section 144, Code of Criminal Procedure are discussed below and deserve close scrutiny. (a) Prior Inquiry before issuing Order: Before issuing an order Under Section 144, Code of Criminal Procedure, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially 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, Code of Criminal Procedure 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, Code of Criminal Procedure has been the subject matter of several Constitution Bench rulings and we will briefly examine them. The constitutional validity of Section 144, Code of Criminal Procedure 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). 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, Code of Criminal Procedure. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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), Code of Criminal Procedure as it then existed, which enabled the State Government to extend an order passed Under Section 144, Code of Criminal Procedure indefinitely, as unconstitutional, since it did not provide limitations on the duration of the order and no mechanism was provided therein to 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 re-consider the law laid down in Babulal Parate (supra) and the constitutional validity of Section 144, Code of Criminal Procedure This Court, while affirming the constitutional validity of Section 144, Code of Criminal Procedure reiterated the safeguards while exercising the power Under Section 144, Code of Criminal Procedure The Court highlighted that the power Under Section 144, Code of Criminal Procedure must be: (a) exercised in urgent situations to prevent harmful occurrences. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny action may be taken Under Section 144 of the Code of Criminal Procedure 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, Code of Criminal Procedure. 113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71, this Court held that an order passed Under Section 144, Code of Criminal Procedure 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de it would clearly amount to abuse of the power conferred by Section 144 of the Code. 115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court emphasised the safeguards Under Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure as there existed no incumbent 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, Code of Criminal Procedure 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 counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders 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. 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 seven-Judge Bench in Madhu Limaye case (supra) further elucidated as to when and against whom the power Under Section 144, Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2005 [Ed.: The Code of Criminal Procedure (Amendment) Act, 2005.], the District Magistrate has 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. ... 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. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer 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 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. 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, Code of Criminal Procedure. 127. The Petitioners also contended that orders passed Under Section 144, Code of Criminal Procedure, 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 afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f judicial review will stand crippled if the order itself is unreasoned or un-notified. 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. Sub-section (1) confers powers not on the executive but on certain Magistrates...Under Sub-section (1) the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable. Again the Sub-section 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 Sub-section further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints. 130. While passing orders Under Section 144, Code of Criminal Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, 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... 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 judgment about the likely threat to public peace and law and order. The State is best placed to make an assessment of threat to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a situation where the order 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), Code of Criminal Procedure 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 27.09.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 10-08-2019 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 04-08-2019, 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 Ladak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt 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: It is hardly necessary to provide specifically for the freedom of the press as freedom of expression provided in Sub-clause (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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment.21 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 (Privacy-9J.) (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 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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