ANURADHA BHASIN v. UNION OF INDIA & ORS.

812 [2020] SUPREME COURT 1 S.C.R. 812 REPORTS [2020] 1 S.C.R.

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1. There are two separate types of reasoning that mandate this Court to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A E democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and F not to take away these rights in an implied fashion or in casual and cavalier manner. [Para 15][847-B-C]

2. 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 clandestine manner. [Para G 16][847-D]

3. 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

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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. [Para 17][847-F-G; 848- A]

4. 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 the opinion of this Court, this is not a valid ground to refuse production of orders before the Court. [Para 18][848- B] FUNDAMENTAL RIGHTS UNDER PART III AND RESTRICTIONS THEREOF D

5. The internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely E 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 under Article 19(1)(g), subject to the restrictions provided under Article 19(6). [Para F 27][850-D-E]

6. It has been argued by the Petitioners that the restrictions under Article 19 of the Constitution cannot mean complete prohibition. In this context, the aforesaid contention cannot be sustained in light of a number of judgments of this Court wherein G the restriction has also been held to include complete prohibition in appropriate cases. [Para 32][851-F]

7. The study of various case laws points to three propositions which emerge with respect to Article 19(2) of the Constitution. (i) Restriction on free speech and expression may H

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A include cases of prohibition. (ii) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate. (iii) Whether a restriction amounts to a complete prohibition is a question of fact, which is required to be determined by the Court B with regard to the facts and circumstances of each case. [Para 33][852-A-C]

8. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the C requirements under Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict. [Para 46][856- D D]

9. The doctrine of proportionality is not foreign to the Indian Constitution, considering the use of the word ‘reasonable’ under Article 19 of the Constitution. In a catena of judgments, this Court has held “reasonable restrictions” are indispensable for the realisation of freedoms enshrined under Article 19, as they are what ensure that enjoyment of rights is not arbitrary or excessive, so as to affect public interest. [Para 53][858-C-D]

10. The requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. G 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 H

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has serious implications on the fundamental rights of the affected A parties, the same should be supported by sufficient material and should be amenable to judicial review. [Para 70][870-E-G]

11. 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. [Para 71][871- B A]

12. 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 C 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 D restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed. [Para 72][871-B-C]

13. 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. [Para 76][871-G-H; 872-A] INTERNET SHUTDOWN G

14. The complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of H

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A an alternate less intrusive remedy. Having said so, it is noted that the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 have certain gaps, which are required to be considered by the legislature. [Para 99][881-C] B 15. 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, this Court is 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. Therefore, it is directed 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 E Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. It is clarified 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 F beyond that time period which is necessary. [Para 100][881-D-G] RESTRICTIONS UNDER SECTION 144 OF CRPC

16. The safeguards in Section 144, Cr.P.C. are discussed below and deserve close scrutiny.

G (a) Prior Inquiry before issuing Order: Before issuing an order under Section 144, Cr.P.C., the District Magistrate (or any authorised Magistrate) must be of the opinion that: (i) There is a sufficient ground for proceeding under this provision i.e. the order is likely to prevent obstruction, H

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annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity; and (ii) Immediate prevention or speedy remedy is desirable. The phrase “opinion” suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power conferred under this provision. (b) Content of the Order: Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the “material facts” of the case. The “material facts” must indicate the reasons which weighed with the Magistrate to issue an order under Section 144, Cr.P.C. (c) Communication of the Order: The Order must be served in the manner provided under Section 134, Cr.P.C., i.e., served on the person against whom it is made. If such a course of action is not practicable, it must be notified by proclamation and publication so as to convey the information to persons affected by the order. Only in case of an emergency or where the circumstances are such that notice cannot be served on such a person, can the order be passed ex parte. (d) Duration of the Order: As this power can only be exercised in urgent cases, the statute has incorporated temporal restrictions—the order cannot be in force for more than two months. However, the State Government can extend an order issued under Section 144, Cr.P.C. by a Magistrate for a further period up to six months if the State Government considers it necessary for preventing danger to human life, health or safety or preventing a riot. G Although, a two-month period outer limit for the Magistrate, and a six-month limit for the State Government, has been provided under Section 144, Cr.P.C. but the concerned Magistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration. H

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A (e) Act Judicially 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, Cr.P.C. While considering any application for modification B 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. [Para 108][884-G-H; 885-B-H; 886- A-C] C 17. The orders passed under Section 144, Cr.P.C. have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The D order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or un-notified. This Court, in the case of Babulal Parate, also stressed upon the requirement of having the order in writing, wherein it is clearly E indicated that opinion formed by the Magistrate was based upon the material facts of the case. [Para 129][896-H; 897-A-B]

18. While passing orders under Section 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 F particular area or some particular issues. However, in the present case, it is contended by the Petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed under Section 144, Cr.P.C. and the passing of these orders need to be looked at in this G perspective. In response, it is the case of the Respondent, although it has not been stated in clear terms, that it is an issue of national security and cross border terrorism. It is cautioned against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. [Para 130][897-E-G] H

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19. The existence of the power of judicial review is undeniable. The opinion that it is for the Magistrate and the State to make an informed judgement 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. [Para 132][899-B-C]

20. In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. C The preventive/remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher. [Para 133][899-D-E]

21. An order passed under Section 144, Cr.P.C. should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the application of mind of the officer concerned, to the controversy involved and the conclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law. [Para 134][899-F] F

22. Although the restrictions have been allegedly removed on 27.09.2019, thereby rendering the present exercise into a virtually academic one, this Court cannot ignore non-compliance of law by the State. This case is not just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but G also about the future, where this Court has to caution the Government. Hence, the authorities directed to follow the

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A principles laid down by this Court and uphold the rule of law. [Para 138][900-F]

23. The legal position on Section 144, Cr.P.C is summarised as follows: (i) The power under Section 144, Cr.P.C., being remedial B 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. C (ii) The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. (iii) An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power D 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, Cr.P.C. E the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. [Para 140][901-B-F] FREEDOM OF THE PRESS

24. There is no doubt that the freedom of the press is a F 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 G to be produced by the imposition of restrictions. [Para 146][904- C]

25. 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 H

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statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment. 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.). [Para 148][904-F-G]

26. The widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism. At this juncture, one may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that:‘‘Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case. [Para 150][905- D-G]

27. 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 F 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 G 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. [Para 151][905-H; 906-A-B]

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A 28. In this view, the following directions are issued: a. The Respondent State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before B the High Court or appropriate forum. b. This Court declares 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 C 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 D 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 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, the Review Committee constituted under Rule 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 under Rule 2(6). g. The respondent State/competent authorities directed 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.

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i. In any case, the State/concerned authorities are directed A 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. [Para 152][906-D-H; 907-A- E] B Ram Jethmalani v. Union of India, (2011) 8 SCC 1 : [2011] 8 SCR 725; K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1; CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 145; Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 : [1950] SCR 759; State of Madras v. V.G. Row, AIR 1952 C SC 196 : [1952] SCR 597; Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853 : [1970] 1 SCR 156; Om Kumar v. Union of India, (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693; State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181; D Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39 : [1982] 1 SCR 1137; Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353; R. v. Oakes, [1986] 1 SCR 103 (Can) SC; K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 : [2017] 10 SCR 569; Hukam E Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 : [1976] 2 SCR 1060; People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301 : [1996] 10 Suppl. SCR 321; B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 : [1987] 1 SCR 1054; F Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) 3 SCC 746 : [1971] 2 SCR 711; Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC 226 : [1978] 2 SCR 419; Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71 : [1982] 1 SCR 1077; Acharya Jagdishwaranand Avadhuta v. Commr. of G Police, Calcutta, (1983) 4 SCC 522 : [1984] 1 SCR 447; Babulal Parate v. State of Bombay, AIR 1960 SC 51 : [1960] SCR 605; Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 : [1966] SCR 709; Ramlila H

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A Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971; State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684 : [2004] 3 SCR 652 – relied on. Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, B (1995) 2 SCC 161 : [1995] 1 SCR 1036; Shreya Singhal v. Union of India, (2015) 5 SCC 1 : [2015] 5 SCR 963; Indian Express v. Union of India, (1985) 1 SCC 641 : [1985] 2 SCR 287; Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410 : [1988] 1 Suppl. SCR 486; Madhya Bharat Cotton Association C Ltd. v. Union of India, AIR 1954 SC 634; Narendra Kumar v. Union of India, [1960] 2 SCR 375; State of Maharashtra v. Himmatbhai Narbheram Rao, [1969] 2 SCR 392; Sushila Saw Mill v. State of Orissa, (1995) 5 SCC 615 : [1995] 2 Suppl. SCR 426; Pratap Pharma D (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 : [1997] 3 SCR 492; Dharam Dutt v. Union of India, (2004) 1 SCC 712 : [2003] 6 Suppl. SCR 151; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : [2005] 4 Suppl. SCR 582; Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : [1981] 1 SCR 206; E Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147 : [1983] 1 SCR 1000; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : [1978] 2 SCR 621; State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181; F Channing Arnold v. The Emperor, (1914) 16 Bom LR 544; Bennett Coleman v. Union of India, (1972) 2 SCC 788 : [1973] 2 SCR 757; Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842; A.K Gopalan v. State of Madras, AIR 1950 SC 27 : [1950] SCR 88; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 G : [1970] 3 SCR 530; National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1– referred to.

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Ex parte Vallandigham, 28 F. Cas. 874 (1863)]; A Abraham v. United States, 250 U.S. 616 (1919); Dennis v. United States, 341 US 494 (1951); Brandenburg v. Ohio, 395 US 444 (1969); R v. Goldsmith, [1983] 1 WLR 151, 155; Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820; Weiman v. Updgraff, B 344 U.S. 183; Laird v. Tantum, 408 U.S. 1 (1972); Clapper v. Amnesty Int’l, USA, 568 U.S. 113 (2013)]; Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999) – referred to. Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law Review, 71(4), 630, C 651 [February, 1958]; Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l L. 789 (2007); Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation, Reasoning Rights Comparative Judicial D Engagement (Hart Publishing, 2014); Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, (2002) 47 – referred to. Case Law Reference [2017] 10 SCR 569 relied on Para 8 E

(2019) 5 SCC 1 referred to Para 8 [1960] SCR 605 relied on Para 8 [1971] 2 SCR 711 relied on Para 8 F [2011] 8 SCR 725 relied on Para 14 [1995] 1 SCR 1036 referred to Para 25 [2015] 5 SCR 963 referred to Para 25 [1985] 2 SCR 287 referred to Para 26 G [1988] 1 Suppl. SCR 486 referred to Para 26 AIR 1954 SC 634 referred to Para 32

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A [1960] 2 SCR 375 referred to Para 32 [1969] 2 SCR 392 referred to Para 32 [1995] 2 Suppl. SCR 426 referred to Para 32 [1997] 3 SCR 492 referred to Para 32 B [2003] 6 Suppl. SCR 151 referred to Para 32 [2005] 4 Suppl. SCR 582 referred to Para 33 [1981] 1 SCR 206 referred to Para 34 [1983] 1 SCR 1000 referred to Para 34 C [1950] SCR 759 relied on Para 53 [1952] SCR 597 relied on Para 53 [1970] 1 SCR 156 relied on Para 53 [2000] 4 Suppl. SCR 693 relied on Para 53 D [1970] 3 SCR 181 relied on Para 53 [1982] 1 SCR 1137 relied on Para 53 (2016) 7 SCC 353 relied on Para 54 [1986] 1 SCR 103 (Can) SC relied on Para 57 E (2019) 1 SCC 1 relied on Para 66 [1978] 2 SCR 621 referred to Para 79 [1976] 2 SCR 1060 relied on Para 90

F [1996] 10 Suppl. SCR 321 relied on Para 91 [1987] 1 SCR 1054 relied on Para 96 [1970] 3 SCR 181 referred to Para 110 [1978] 2 SCR 419 relied on Para 112 G [1982] 1 SCR 1077 relied on Para 113 [1984] 1 SCR 447 relied on Para 114

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[2012] 4 SCR 971 relied on Para 115 A [1966] SCR 709 relied on Para 120 [2004] 3 SCR 652 relied on Para 131 [1973] 2 SCR 757 referred to Para 143 [1962] 3 SCR 842 referred to Para 143 B [1950] SCR 88 referred to Para 149 [1970] 3 SCR 530 referred to Para 149 CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1031 of 2019. C [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA] With Writ Petition (C) No. 1164 of 2019. K.K. Venugopal, AG, Tushar Mehta, SG, K.M. Nataraj, Vikramjit D Banerjee, ASGs, Kapil Sibal, Huzefa Ahmadi, Dushyant Dave, Ms. Meenakshi Arora, Sr. Advs., Ms. Vrinda Grover, Ms. Sumita Hazarika, Nizam Pasha, Shadan Farasat, Ms. Jahnavi Sindhu, Ms. Shruti Narayan, Siddharth, Bhakat Gupta, Ms. Astha Sharma, Apar Gupta, Amjid Maqbool, Ms. Vrinda Bhandari, Abhishek Manchanda, Ms. Kajal Dalal, E Ms. Devdutta Mukhopadhyay, Ms. Deepali Dwivedi, Soayib Quarashi, Ms. Rashmi Singh, Dhanajay Sud, Ms. Rahilla & Yasmin, Fuzail Ahmad Ayyubi, Ankur Talwar, Rajat Nair, Kanu Agrawal, Ayush Anand, Ms. Anindita Barman, Shantnu Sharma, Bhuwan Kapoor, B. V. Balaram Das, Sudhakar Kulwant, Ms. Shashi Juneja, Satyajeet Kumar, Debasis Misra, Kundan Kumar Mishra, R.C. Paul Kanakraj, Dr. Sanatan Ray F Choudhari, Jagdev. Ms. Pareena Swarup, M.S. Vinayak, Dr. Samsuddin Khan Choudhary, Ms. Meera Bhatia, Rajnish Kumar, Ms. Alpana Sharma, Manav, Parvez Bashista, Dr. Sunil Kumar, Pradeep Kumar Koushik, R. Sharath, Shashindra Tripathi, Narender Kumar Sharma, Jay Prakash Somani, Ms. Harvinder Chowdhury, Dr. Nishesh Sharma, Sandip Gorsi, G Sahitya Singh Srivastava, Ms. Ekta Kalra, Anil Kumar, Anshuman Ashok, Advs. for the appearing parties.

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A JUDGMENT TABLE OF CONTENTS Introduction A

Contentions B B Issues C

Production of Orders D

Fundamental Rights under Part III and restrictions E thereof C Internet Shutdown F

Restrictions under Section 144, Cr.P.C. G

Freedom of the Press H

D Conclusion I

N. V. RAMANA, J. A. INTRODUCTION “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” -Charles Dickens in A Tale of Two Cities

1. Although cherished in our heart as a “Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list,

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wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable.In this context, this Court’s job is compounded by the magnitude of the task before it. It goes without saying that this Court will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between 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 whileensuring 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 arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas. F

4. On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and G public gatherings by virtue of powers vested under Section 144, Cr.P.C. Due to the aforesaid restrictions, the Petitioner in W.P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has H

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A been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad) approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ for setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shutdown or suspended or in anyway made inaccessible or unavailable in any locality. Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. Moreover, the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to pass any appropriate writ or direction directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel. Lastly, she also pleaded for the framing of guidelines 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. E 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), F 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:- G (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.

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So far as prayers (2) and (3) of the writ petition are concerned, the State as well as, the Union of India will respond within two weeks hence.”

8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019, the matter was ordered to be tagged along with W.P. (C) No. 1013 of 2019 (five-Judge Bench) and was later de-tagged. On 16.09.2019, a B Co-ordinate Bench of this Court ordered the following: “The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational C institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.” When the said writ petition was listed before this Bench on D 01.10.2019, in light of expediency, this Bench directed that no further intervention applications shall be entertained. However, liberty was granted to file additional documents in support of applications for intervention. When the matter came up for hearing on the next date on 16.10.2019, the following order was passed: E “When these matters came up for hearing today, learned Solicitor General appearing for the Union of India made a submission that after filing the counter affidavit in these matters, certain further developments have taken place and some of the restrictions imposed have been relaxed, particularly with reference to mobile connectivity as well as the landlines services etc. and, therefore, he wants to file another additional affidavit indicating the steps taken by the Government about relaxation of some restrictions. He also made a request to accommodate him for a week only. During the course of hearing, we are informed by the learned Senior counsel appearing for the petitioners that the orders which are issued by the authorities relating to the restrictions imposed have not been provided to them so far. When we asked the learned Solicitor General about the non- supply of orders issued by the authorities relating to the restrictions H

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A imposed, particularly with respect to the cell phone services as well as Section 144 proceedings, he claims privilege over those orders. He, however, states that those orders can be produced before this Court. However, if for any reason, learned Solicitor General does not B 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 C 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. D 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 E 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 F speech, should be tested on the basis of reasonableness and proportionality. • The procedure that is to be followed for restricting Internet services is provided under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, G 2017 [hereinafter “Suspension Rules”], which were notified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was contemplated to be of a temporary nature.

H

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• The orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the restrictions pertaining to the Internet and phones (either mobile or telephone were ex facie perverse and suffered from non-application of mind. • Learned counsel submitted that the orders were not in compliance with the procedure prescribed under the Suspension Rules. Further, the orders did not provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules. • Lastly, the learned counsel contended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is not the same as law and order, and the situation at the time when the orders were passed did not warrant the passing of the orders resulting in restrictions. D Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. (C) No. 1164 of 2019 • Learned senior counsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. E • It was submitted that the conduct of the State, in producing documents and status reports during argumentation, was improper, as it did not allow the Petitioners with sufficient opportunity to rebut the same. • Learned senior counsel submitted that the Union of India can F declare an emergency only in certain limited situations. Neither any ‘internal disturbance’ nor any ‘external aggression’ has been shown in the present case for the imposition of restrictions which are akin to the declaration of Emergency. • With respect to the orders restricting movement passed under G Section 144, Cr.P.C., the learned senior counsel contended that such an order is made to deal with a ‘law and order’ situation, but the orders do not indicate any existing law and order issue, or apprehension thereof. H

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A • Learned senior counsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. 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. B 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, Cr.P.C., the question which then arises is how the C 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 orders, as it would amount to a complete ban. Instead, a distinction should be drawn while imposing restrictions on social media/ mass communication and the general internet. The least restrictive option must be put in place, and the State should have taken preventive or protective measures. Ultimately, the State needs to balance the safety of the people with their lawful exercise of their fundamental rights. F • On internet restrictions, the learned senior counsel submitted that such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has been donein India while prohibiting human trafficking and child pornography websites. The learned senior counsel pointed to orders passed in Bihar, and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same could have been followed in this case as well.

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• Indicating that the State can impose restrictions, the learned senior counsel focussed on the question of the “least restrictive measure” that can be passed. The learned senior counsel submitted that while imposing restrictions, the rights of individuals need to be balanced against the duty of the State to ensure security. The State must ensure that measures are in place that allows people to continue with their life, such as public transportation for work and schools, to facilitate business, etc. Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No. 139141 of 2019 in W.P. (C) No. 1031 of 2019 C • The learned senior counsel emphasized on the term “reasonable”, as used in Article 19(2) of the Constitution, and submitted that the restrictions on the freedom of speech should be reasonable as mandated under Article 19 of the Constitution. These restrictions need to be tested on the anvil of the test of proportionality. D

• Learned senior counsel submitted that Section 144, Cr.P.C. orders should be based on some objective material and not merely on conjectures. Mr. Dushyant Dave, Senior Counsel for the Intervenor in E I.A. No. 139555 in W.P. (C) No. 1031 of 2019 • Learned senior counsel attempted to highlight that the issue of balancing the measures necessary for ensuring national security or curbing terrorism, with the rights of the citizens, is an endeavour that is not unique, and has been undertaken by Courts F 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 G 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. H

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A • 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 B justification merits rejection as it would amount to granting too much power to the State to impose broad restrictions on fundamental rights in varied situations. It would amount to individual liberty being subsumed by social control. • The learned senior counsel emphasized on the seriousness of the present matter, stating that such restrictions on the fundamental rights is the reason for the placement of Article 32 of the Constitution in Part III, as a fundamental right which allows for the enforcement of the other fundamental rights. He referred to the Constituent Assembly debates to highlight the import of Article 32, as contemplated by the Members of the Constituent Assembly. • The learned senior counsel also placed before this Court the Government of India National Telecom Policy, 2012, and submitted that the wide restrictions imposed by the State are in contravention of the aforementioned policy. He submitted that the freedom of speech and expression is meant to allow people to discuss the burning topic of the day, including the abrogation of Article 370 of the Constitution. • Lastly, the learned senior counsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter. Ms. Meenakshi Arora, Senior Counsel for the Intervenor in I.A. No. 140276 in W.P. (C) No. 1031 of 2019 G • Learned senior counsel submitted that Articles 19 and 21 of the Constitution require that any action of the State must demonstrate five essential features: (a) backing of a ‘law’, (b) legitimacy of purpose, (c) rational connection of the act and object, (d) necessity of the action, and (e) when the above four are established, then the test of proportionality. H

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• At the outset, learned senior counsel submitted that it is A necessary to test the validity of the orders by reference to the facts and circumstances prevailing on the date of passing of the said orders, i.e., 04.08.2019. • Learned senior counsel submitted that the orders that have not been published cannot be accorded the force of law. The B necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege. C • The learned senior counsel further submitted that, 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. D • 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 E 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. F 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 G submitted on behalf of the Petitioner that although he and his family were law abiding citizens, yet they are suffering the effects of the restrictions. Citing the House of Lords judgment of Liversidge v. Anderson, (1941) 3 All ER 338 the learned senior counsel submitted that it was the dissent by Lord Atkin, H

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A upholding the fundamental rights of the citizens of the United Kingdom, which is now the law of the land. Mr. K. K. Venugopal, Learned Attorney General for the Union of India • The learned Attorney General supported the submissions made by the Solicitor General. He submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account. Relying on National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, the learned Attorney General submitted that this Court while deciding the aforementioned case, has taken cognizance of the problem of terrorism in the State before. • According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism and internal militancy, it would have been foolish to have not taken any preventive measures in the circumstances. The necessity of the orders under Section 144, Cr.P.C. are apparent from the background facts and circumstances, when there can be huge violence if the Government did not take these kinds of measures. In fact, similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State. E Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir • The learned Solicitor General submitted that the first and foremost duty of the State is to ensure security and protect the citizens- their lives, limbs and property. He further submitted that the facts relied on by the Petitioners and the Intervenors were incorrect, as they did not have the correct information about the factual position on the ground in the State of Jammu and Kashmir. • The learned Solicitor General submitted that the historical background of the State of Jammu and Kashmir is necessary to be looked at to understand the measures taken by the State. The State has been a victim of both physical and digital cross border terrorism. • The abrogation of Article 370 of the Constitution on 05.08.2019 H was a historic step, which resulted not in the taking away of

843 [N. V. RAMANA, J.]

the rights of the citizens of Jammu and Kashmir, but conferment A 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. B 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. C • On the orders passed by the Magistrates under Section 144, Cr.P.C., 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 D 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 general clampdown, as is being suggested by the Petitioners. E • Further, the learned Solicitor General pointed to various figures to indicate that people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the Petitioner in W.P. (C) No. 1031 of 2019 is situated. The learned F Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the populace. • The learned Solicitor General submitted that orders passed under Section 144, Cr.P.C. can be preventive in nature, in order to G prevent danger to public safety. The Magistrate can pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be considered keeping in mind the history and the background of the State. H

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A • Relying on Babulal Parate v. State of Bombay, AIR 1960 SC 51, and Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) 3 SCC 746, the learned Solicitor General submitted that the situation in the State of Jammu and Kashmir was such that the orders could be justified in view of maintenance of the “security of the State”. Regarding the B Petitioners’ submission that the restrictions could have been imposed on specific individuals, the learned Solicitor General submitted that it was impossible to segregate, and control, the troublemakers from the ordinary citizens. • The learned Solicitor General submitted that there were enough facts in the knowledge of the Magistrate to pass the orders under Section 144, Cr.P.C. There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution, and they were aware of the situation on the ground. Provocative speeches and messages were being transmitted. This information is all available in the public domain. • It was further submitted that the Court does not sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C. and has limited jurisdiction to interfere, particularly when there are no allegations of mala fide made against the officers and when the question involved is of national security. The level of restriction required is best left to the officers 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.

F • 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 G 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.

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• 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 context should be kept in mind by the Court B while dealing with the restrictions with respect to the two media. • While referring to various photographs, tweets and messages of political leaders of Kashmir, he stated that these statements are highly misleading,abrasive and detrimental to the integrity and sovereignty of India. C • Further, it is not possible to ban only certain websites/parts of the Internet while allowing access to other parts. Such a measure was earlier attempted in 2017, but it was not successful. • Lastly, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in compliance with the procedure in the Suspension Rules, and are being reviewed strictly in terms of the same.

9. Some of the intervenors have supported the submissions made by the learned Attorney General and the Solicitor General, and indicated that the restrictions were necessary and in compliance with the law. They have also submitted that normalcy is returning in the State of Jammu and Kashmir, and that the present petitions are not maintainable. C. ISSUES

10. In line with aforesaid facts and arguments,the following questions of law arise for our consideration: I. Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules? II. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internetis a part of the fundamental rights under Part III of the Constitution? III. Whether the Government’s action of prohibiting internet access is valid? H

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A IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid? V. Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions? D.PRODUCTION OF ORDERS B

11. The present petitions, their context and conduct of the parties, have placed this Court in a peculiar situation. We have been asked to go into the question of the validity of orders, restricting movement and communication, passed in the State of Jammu and Kashmir by various authorities, however, the orders are not before us. The Petitioners and C Intervenors claim that the orders were not available, which is why 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 D 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. E 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 F 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 obligation of the State to disclose information, particularly in a writ proceeding, this Court in Ram Jethmalani v. Union G of India, (2011) 8 SCC 1, observed as follows: “75. In order that the right guaranteed by clause (1) of Article 32 be meaningful, and particularly because such petitions seek the protection of fundamental rights, it is imperative that in such proceedings the petitioners are not denied the H

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information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State.” (emphasis supplied)

15. We may note that there are two separate types of reasoning that mandates us to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to 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 the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein 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.

16. Second, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but alsoa requirement under natural law, that no law should be passed in a clandestine manner. As Lon L. Fuller suggests in his celebrated article “there can be no greater legal monstrosity than a secret statute”.1 In this regard, Jeremy Bentham spoke about open justice as the “keenest spur to exertion”. In the same context, James Madison E stated “apopular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern the ignorance and a people who mean to be their own Governors must arm themselves with the power which knowledge gives”. F

17. As a general principle, on a challenge being made regarding the curtailment of fundamental rights as a result of any order passed or action taken by the State which is not easily available, the State should take a proactive approach in ensuring that all the relevant orders are placed before the Court, unless there is some specific ground of privilege G 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 1 Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law Review, 71(4), 630, 651 [February, 1958]. H

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A claim of the State overrides the interests of the Petitioner. Such portion of the order can be redactedor 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, B 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 C 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. D 20. The nature of fundamental rights under Part III of the Constitution is well settled.The fundamental rights areprescribed as a negative list, so that “no person could be denied such right until the Constitution itself prescribes such limitations”. The only exception to the aforesaid formulation is Article 21A of the Constitution,which is a positive right that requires an active effort by the concerned government to ensure that the right to education is provided to all children up to the age of 16 years.

21. The positive prescription of freedom of expression will result in different consequences which our own Constitution has not entered into. Having different social and economic backgrounds and existing on a different scale of development, the human rights enshrined therein have taken a different role and purpose. The framers of the Indian Constitution were aware of the situation of India, including the socio- economic costs of such proactive duty, and thereafter took an informed decision to restrict the application of fundamental rights in a negative manner. This crucial formulation is required to be respected by this Court,which has to uphold the constitutional morality behind utilization of such negative prescriptions.

22. Now, we need to concern ourselves about the freedom of expression overthe medium of internet. There is no gainsaying that in today’s world the internet stands as the most utilized and accessible

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medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet.

23. At this point it is important to note the argument of Mr. Vinton G. Cerf, one of the ‘fathers of the internet’. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right.2 Technology, in his view, is an enabler of rights and not a right in and of itself. He distinguishes between placing technology among the exalted category of other human rights, such as the freedom of conscience, equality etc. With great respect to his opinion, the prevalence and extent of internet proliferation cannot be undermined in one’s life. C

24. Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in 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 F Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161;Shreya Singhal v. Union of India, (2015) 5 SCC 1].

26. The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express v. Union of G India, (1985) 1 SCC 641, wherein this Court had declared that the freedom of print medium is covered under the freedom of speech and expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to 2 Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04, 2012). H

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A exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a), which can be curtailed only under circumstances set out under Article 19(2). Further, this Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information & Broadcasting, Government of B India(supra). In this context, we may note that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and,as technology has evolved, has recognized the freedom of speech and expression overdifferent media of expression. Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.

27. In this context, we need to note that the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades 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 internetis also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

28. None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.

29. Having explained the 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 thefreedom of speech and expression, restrictions are provided under Article 19(2) of the Constitution, which reads as under: H

851 [N. V. RAMANA, J.]

“(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: C a. The action must be sanctioned by law; b. The proposed action must be a reasonable restriction; c. Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency D or morality or in relation to contempt of court, defamation or incitement to an offence.

31. At the outset, the imposition of restriction is qualified by the term ‘reasonable’ and is limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, E public order, decency or morality or contempt of Court, defamation or incitement to an offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense.

32. It has been argued by the counsel for the Petitioners that the restrictions under Article 19 of the Constitution cannot mean complete F prohibition. In this context we may note that the aforesaid contention cannot be sustained in light of a number of judgments of this Court wherein therestriction has also been held to include complete prohibition in appropriate cases. [Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634, Narendra Kumar v. Union of India, (1960) G 2 SCR 375, State of Maharashtra v. Himmatbhai Narbheram Rao, (1969) 2 SCR 392, Sushila Saw Mill v. State of Orissa, (1995) 5 SCC 615, Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 and Dharam Dutt v. Union of India, (2004) 1 SCC 712]

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A 33. The study of aforesaid case law points to three propositions which emerge with respect to Article 19(2) of the Constitution. (i) Restriction on free speech and expression may include cases of prohibition. (ii) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser B alternatives would be inadequate. (iii) Whether a restriction amounts to a complete prohibition is a question of fact, which is requiredto be determined by the Court with regard to the facts and circumstances of each case. [refer to State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534]. C 34. The second prong of the test, wherein this Court is required to find whether the imposed restriction/prohibition was least intrusive, brings us to the question of balancing and proportionality. These concepts are not a new formulation under the Constitution. In various parts of the Constitution, this Court has taken a balancing approach to harmonize D 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 tofundamental rights and the directive principles of State Policy. E 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 formany 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 F 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 G there exists a clear and present danger in restricting such expression.

36. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The H prevalence of the internet provides an easy inroad to young impressionable

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minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public A Policy, Pepperdine University,states in his article about propaganda and the use of internet in the following manner: “Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that has far-reaching consequences. B Because internet postings are not regulated sources of news, they can reflect any viewpoint, truthful or not. Thus, readers tend to consider internet items to be fact, and stories can go unchecked for some time. Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda.”

37. Susan W. Brenner,4 NCR Distinguished Professor of Law and Technology, University of Dayton School of Law, also notes that the traditional approach has not worked satisfactorily on terrorism due to the proliferation of the internet.It is the contention of the respondents that the restriction on the freedom of speech was imposed due to the fact that there were national security issues over and above a law and order situation, wherein there were problems of infiltration and support from the other side of the border to instigate violence and terrorism. The learned Solicitor General pointed out that the ‘war on terrorism’ requires imposition of such restriction so as to nip the problem of terrorismin the bud. He submitted that in earlier times, sovereignty and integrity of a State was challenged only on occurrence of war. In some cases, there have been instances where the integrity of the State has been challenged by secessionists. However, the traditional conceptions of warfare have undergone an immense change and now it has been replaced by a new term called ‘war on terror’. This war, unlike the earlier ones, is not limited to territorial fights, rather, it transgresses into other 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. 3 Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l L. 789 (2007). 4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005). H

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A 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 withthe US being perceived to be one of the liberal constituencies with respect to free speech jurisprudence. However, we B 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’. C He urged the citizens to use ballot boxes to hurl ‘President Lincoln’ from his throne. As a reaction, Union soldiers arrested Mr. Vallandigham and he had to face a five-member military commission which charged him with ‘declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion’. [Ex parte Vallandigham, 28 F. Cas. 874 (1863)] The commission found Mr. Vallandigham guilty and imposed imprisonment during the war. The aforesaid imprisonment was met with demonstrations and publications calling such imprisonment as a crime against the US Constitution. President Lincoln, having regard to the US Constitution, commuted the imprisonment and converted the same to banishment. He justified the aforesaid act by stating that banishment was more humane and a less disagreeable means of securing least restrictive measures.

40. During World War I, many within the US had strong feelings against the war and the draft imposed by the administration of President F Woodrow Wilson. During this period, the US enacted the Espionage Act, 1917 which penalised any person who wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services. In any case, in Abraham v. United States, 250 U.S. 616 (1919), Justice Holmes even in his dissent observed as under: G “I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States H constitutionally may seek to prevent. The power undoubtedly

855 [N. V. RAMANA, J.]

isgreater in time of war than in time of peace, because war opens dangers that do not exist at other times.” (emphasis supplied)

41. The Second World War was also riddled with instances of tussle between the First Amendment and national security issues. An instance of the same was the conviction of William Dudley Pelley, under the Espionage Act, 1917, which the Supreme Court of United States refused to review.

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 action’. G

44. There is no doubt that the events of September 2001 brought new challenges to the US in the name of ‘war on terror’. In this context, Attorney General John Ashcroft stated that “To those… who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national H

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A unity and diminish our resolve. They give ammunition to America’s enemies…’.5 However, Bruce Ackerman, in his article,6 states that: “The “war on terrorism” has paid enormous political dividends....but that does not make it a compelling legal concept. War is traditionally defined as a state of belligerency between sovereigns....The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties.”

45. From the aforesaid study of the precedents and facts, we may note that the law in the US has undergone lot of changes concerning dissent during war. The position that emerges is that any speech which incites imminent violence does not enjoy constitutional protection.

46. It goes without saying that the Government is entitled to restrictthe freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the requirements under D Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat maybe restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.

47. The requirement of balancing various considerations brings us to the principle of proportionality. In the case of K.S. Puttaswamy (Privacy-9J.) (supra), this Court observed: “310…Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law...”

48. Further, in the case of CPIO v Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459, the meaning of proportionality was explained as: “225…It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…” 5 Senate Judiciary Committee Hearing on Anti-Terrorism Policy, 106th Cong. (Dec. 6, 2001) (testimony of Attorney General John Ashcroft) 6 Ackerman, Bruce, “The Emergency Constitution”, Faculty Scholarship Series, 113 H (2004).

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49. At the same time, we need to note 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.” C

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. D

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 fundamental rights apply as ‘rules’, wherein they apply in an ‘all-or-nothing fashion’. This view is furthered by Ronald Dworkin, whoargued in his theory that concept of a right implies its ability to trump over a public good.8 Dworkin’s view necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest norm under the Constitution. This would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Courts, the samemay not be completely suitable in the Indian context, having regardto the structure of Part III which comes with inbuilt restrictions. G

7 Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice, (2005) 32 Journal of Law and Society 510. 8 Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights (1984) 153 (hereinafter Dworkin, “Rights as is trumps”). H