Code of Criminal Procedure, 1973 – s. 144 – Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 – Exemption from production of orders passed u/s. 144 Cr. P.C. and under the suspension Rules by the Government – Claim of – Various Authorities passed orders restricting the movement and communication in the State of Jammu and Kashmir, however, the orders were not placed before the Court – Held: There are two separate types of reasoning that mandate the production of the orders passed by the authorities – First, Art. 19 of the Constitution mandate right to information as an important facet of the right to freedom of speech and expression – A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is right of an individual to know – The State has to act in a responsible manner to uphold Part- III of the Constitution and not to take away these rights in an implied fashion or in Casual and Cavalier manner – Second, there is no dispute that democracy entails free flow of information – There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a cladestine manner – When there is a curtailment of fundamental right 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 the instant 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 the Court – This is not a valid ground to refuse production of orders before the Court.

Constitution of India – Art.19(1)(g) – Freedom of trade and commerce through the medium of the internet – Protection u/Art. 19(1)(g) – Held: Internet is a very important tool for trade and commerce – The globalization of the Indian economy and the rapid advances in information and technology have opended up vast business avenues and transformed India as a global IT hub – There are certain trades which are completely dependent on the internet – Such a right of trade through internet also fosters consumerism and availability of choice – Therefore, the freedom of trade and commerce through the medium of the internet is also Constitutionally protected u/Art. 19(1)(g), subject to the restrictions provided u/Art. 19(6).

Doctrine/ Principles – Doctrine of proportionality – Requirement of – Constitution of India – Art. 19(1)(g) – Held: In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined – It ought to be noted that such goal must be legitimate – However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal – The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure – It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances – Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

Doctrine/ Principles – Doctrine of Proportionality – Immediate impact of restrictions upon the realization of the fundamental rights – Held: 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.

Constitution of India – Indefinite internet shut down by the Government – Validity of – Held: One of the gaps must be highlighted relates to the usage of the word ‘temporary’ in the title of the ‘Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 ‘– Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation – Keeping in view the requirements of proportionality, an order suspending the aforesaid services indefinitely is impermissible – 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, the Review Committee constituted u/r. 2(5) of the Suspension Rules directed to conduct a periodic review within seven working days of the previous review, in terms of the requirements u/r. 2(6).

Words and Phrases – ‘emergency’ – The word ‘emergency’ has various connotations – Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property – The ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis.

Code of Criminal Procedure, 1973 – s.144 – Various Authorities passed orders restricting movements u/s. 144 on 4.8.2019 in the State of Jammu and Kashmir – Validity of – Petitioners contended that there had to be a circumstance on 4.8.2019 showing that there would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquility and Government could not have passed such orders in anticipation or on the basis of apprehension – Held: The power u/s. 144 Cr. P.C being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger – However, the danger contemplated should be in the nature of an ‘emergency’ and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed – While passing orders u/s.144 Cr.P.C., 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 – In the instant case, it was contended by the petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed u/s. 144 Cr. P.C. and the passing of these orders need to be looked at in this perspective – In response, it is the case of the respondent, that it is an issue of national security and cross border terrorism – Although, the restrictions were removed on 27.9.2019, thereby rendering the present exercise into a virtually academic one, however, the non-compliance of law by the State cannot be ignored – Hence, the authorities directed to follow the principles laid down by the Supreme court and upheld the rules of law.

Code of Criminal Procedure, 1973 – Order passed u/s. 144 – Judicial review – Scope of – Held: The existence of the power of judicial review is undeniable – 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 public peace and tranquillity or law and order – However, the law requires them to state the material facts for invoking this power – This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. 

Constitution of India – Freedom of Press – Restriction on – The petitioner alleged that the cumulative effect of various restrictions on 4.8.2019 in the State of Jammu and Kashmir, such as the imposition of s.144 Cr. P.C. and restriction on internet and communication, has indirectly affected the freedom of the press in the valley – The contention of petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions – Held: 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 – On the other hand, 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, it is not 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.