ANURADHA BHASIN v. UNION OF INDIA & ORS.

p. 858

A 52. However, there is an alternative view, held by Robert Alexy, wherein the ‘fundamental rights’ are viewed as ‘principles’,9 wherein the rights are portrayed in a normative manner. Rules are norms that are always either fulfilled or not; whereas principles are norms which require that something be realized to the greatest extent possible given the legal and factual possibilities.10 This characterisation of principles has B implications for how to deal with conflicts between them: it means that where they conflict, one principle has to be weighed against the other and a determination has to be made as to which has greater weight in this context.11 Therefore, he argues that nature of principles implies the principle of proportionality.12 C 53. 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 D rights is not arbitrary or excessive, so as to affect public interest. This Court, while sitting in a Constitution Bench in one of its earliest judgments in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 interpreted limitations on personal liberty, and the balancing thereof, as follows: E “7. The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which F arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.” G (emphasis supplied)

9 R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002). 10 Ibid at page 47. 11 Ibid, page 50. 12 H Ibid, page 66.

ANURADHA BHASIN v. UNION OF INDIA & ORS. 859 [N. V. RAMANA, J.]

This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,while laying down the test of reasonableness, held that:

15. … It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict…. C (emphasis supplied) A Constitution Bench of this Court in Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853 while determining rights under Article 19(1)(g) of the Constitution, discussed the doctrine of proportionality in the aforesaid terms: D “10. … The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured E in the light of the object sought to be achieved, the necessity to restrict the citizen’s freedom … the possibility of achieving the object by imposing a less drastic restraint … or that a less drastic restriction may ensure the object intended to be achieved.” F (emphasis supplied) In the case of Om Kumar v. Union of India, (2001) 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as follows:

28. By “proportionality”, we mean the question whether, G while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the court will see that the legislature and H

p. 860

A the administrative authority ”maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice B made infringes the rights excessively or not is for the court. That is what is meant by proportionality. (emphasis supplied) [See also State of Bihar v. Kamla Kant Misra, (1969) 3 SCC C 337; BishambharDayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39]

54. Recently, this Court in Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held that no constitutional right can be claimed to the absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified. The Court held as follows: “62. It is now almost accepted that there are no absolute constitutional rights. [Though, debate on this vexed issue still continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be treated as “absolute”. Examples given are:(a) Right to human dignity which is inviolable,(b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary.] … In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—of both the right and its limitation in the Constitution—exemplifies the H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 861 [N. V. RAMANA, J.]

inherent tension between democracy’s two fundamental elements...” (emphasis supplied)

55. In the aforesaid case, this Court was posed with a dilemma as to how to treat competing rights. The Court attempted toresolve the conflict by holding that rights and limitations must be interpreted harmoniously so as to facilitate coexistence. This Court observed therein: “62… On the one hand is the right’s element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This D is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy’s different facets is a “constructive tension”. It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects—rights on the one hand and its limitation on the other hand—is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context.” (emphasis supplied)

56. The next conundrum faced by the Court was in achieving the requisite balance, the solution for which was derived from the principle of proportionality. The eminent constitutional jurist, Kai Möller states that the proportionality principle is the doctrinal tool which guides Judges through the process of resolving these conflicts.13 One of the theories of 13 Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012). H

p. 862

A proportionality widely relied upon by most theorists is the version developed by the German Federal Constitutional Court. The aforesaid doctrine lays down a four pronged test wherein, first, it has to be analysed as to whether the measure restricting the rights serves a legitimate goal (also called as legitimate goal test), then it has to be analysed whether the measure is a suitable means of furthering this goal (the rational connection stage), next it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy (the necessity test) and at last, it should be analysed if such a measure had a disproportionate impact on the right-holder (balancing stage). One important feature of German test is the last stage of balancing, which determines the outcome as most of the important issues are pushed to the balancing stage and the same thereby dominates the legal analysis. Under this approach, any goal which is legitimate will be accepted; as usually a lesser restrictive measure might have the disadvantage of being less effective and even marginal contribution to the goal will suffice the rational connection test.14 D

57. The aforesaid test needs to be contrasted with its Canadian counterpart also known as the Oakes test. According to the said doctrine, the object of the measure must be compelling enough to warrant overriding of the constitutionally guaranteed freedom; a rational nexus must exist between such a measure and the object sought to be achieved; the means E must be least restrictive; and lastly, there must be proportionality between the effects of such measure and the object sought to be achieved. This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can) SC, in the following words (at p. 138): F “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally G protected right or freedom” … Second … the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”… Although the nature of the proportionality test will vary 14 Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation, H Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).

ANURADHA BHASIN v. UNION OF INDIA & ORS. 863 [N. V. RAMANA, J.]

depending on the circumstances, in each case courts will be A required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” B the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”... The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.” (emphasis supplied)

58. As can be seen, there exists substantial difference in both approaches, as the Oakes test, instead of requiring “any” legitimate goal, demands the same to be compelling enough to warrant the limitation of constitutional rights. Additionally, while the German necessity test calls for a lesser restrictive measure which is equivalently effective, the need for effectiveness has been done away with in the Oakes test wherein the requirement of least infringing measure has been stipulated. E

59. It is also imperative for us to place reliance on Aharon Barak’s seminal book15 on proportionality upon which Dr A.K. Sikri, J. placed reliance while expounding the doctrine of proportionality in Modern Dental College case (supra) as follows: “60. … a limitation of a constitutional right will be constitutionally F permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; G (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally 15 Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press, 2012) H

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A (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (emphasis supplied) B 60. In Modern Dental College case (supra), this Court also went on to analyse that the principle of proportionality is inherently embedded in Indian Constitutionunder the realm of the doctrine of reasonable restrictions and that the same can be traced under Article 19. The relevant extracts are placed below: C “65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression “reasonable restriction” seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression “reasonable” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC F 33). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd.Hanif Quareshi v. State of Bihar, AIR 1958 SC G 731).” (emphasis supplied)

61. Thereafter, a comprehensive doctrine of proportionality in line with the German approach was propounded by this Court in the Modern Dental College case (supra) wherein the Court held that: H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 865 [N. V. RAMANA, J.]

“63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such alimitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary...

64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.” (emphasis supplied) D

6262. While some scholars such as Robert Alexy16 call for a strong interpretation of the necessity stage as it has direct impact upon the realisation and optimisation of constitutional rights while others such as David Bilchitz17 found significant problems with this approach. E

6363. First, Bilchitz focuses on the issues arising out of both the German test and the Oakes test, wherein the former treats all policies to be necessary by justifying that the available alternatives may not be equally effective,while the latter applies the “minimal impairment test” narrowing the constitutionally permissible policies and places a strong burden on the Government to justify its policies. Therefore, Bilchitz argues that if the necessity stage is interpreted strictly, legislations and policies no matter how well intended will fail to pass the proportionality inquiry if any other slightly less drastic measure exists. Bilchitz, therefore, indicates that Alexy’s conclusion may be too quick.

6464. Moreover, this also leads to the issue regarding the doctrine of separation of power, as Courts would often substitute the views of the legislature in deciding what is the “least restrictive measure”. Taking the 16 Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) 47. 17 David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L. Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014). H

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A aforesaid issues into consideration, Bilchitz proposed a moderate interpretation of the necessity test wherein Courts may no longer be required to assess policies and measures against impractical and unreasonable standards. He states that “[n]ecessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. That process thus requires courts to reason through the various stages of the moderate interpretation of necessity.”18 He therefore recommends a four-step inquiry which is listed below:19 (MN1) All feasible alternatives need to be identified, with courts being explicit as to criteria of feasibility; (MN2) The relationship between the government measure under consideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner; (MN3) The differing impact of the measure and the alternatives (identified in MN2) upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact; and E (MN4) Given the findings in MN2 and MN3, an overall comparison (and balancing exercise) must be undertaken between the measure and the alternatives. A judgement must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights (‘the comparative component’).

6565. Admittedly, fundamental rights may not be absolute, however, they require strong protection, thereby mandating a sensible necessity test as the same will prevent the fundamental right from becoming either absolute or to be diminished. Bilchitz, describes the aforesaid test to be neither factual nor mechanical, but rather normative and qualitative. He

18 Ibid, page 61. 19 Ibid, page 61. H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 867 [N. V. RAMANA, J.]

states that “[t]he key purpose of the necessity enquiry is to offer an A explicit consideration of the relationship between means, objectives and rights… Failure to conduct the necessity enquiry with diligence, however, means that a government measure can escape close scrutiny in relation to both the realisation of the objective and its impact upon fundamental rights.”20 B

6666. Taking into consideration the aforesaid analysis, Dr. Sikri, J., in K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the test laid down in Modern Dental College Case (supra) which was based on the German Test and modulated the same as against the tests laid down by Bilchitz. Therein this Court held that: C

“157. In Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353], four sub-components of proportionality which need to be satisfied were taken note of. These are: D (a) A measure restricting a right must have a legitimate goal (legitimate goal stage). (b) It must be a suitable means of furthering this goal (suitability or rational connection stage). (c) There must not be any less restrictive but equally effective E alternative (necessity stage). (d) The measure must not have a disproportionate impact on the right-holder (balancing stage). 158.This has been approved in K.S. Puttaswamy [K.S. F Puttaswamy v. Union of India, (2017) 10 SCC 1] as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of course, while undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs G freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with more nuanced approach as 20 Ibid, 62 H

p. 868

A suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353] and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as B suggested by Bilchitz, as this projects an ideal approach that need to be adopted.” (emphasis supplied)

6767. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar-5J.) C (supra), made observations on the test of proportionality that needs to be satisfied under our Constitution for a violationof the right to privacy to be justified, in the following words: “1288. In K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us D (Chandrachud, J.), speaking for four Judges, laid down the tests that would need to be satisfied under our Constitution for violations of privacy to be justified. This included the test of proportionality: (SCC p. 509, para 325) “325. … A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” G The third principle [(iii) above] adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve them. The essential role of the test of proportionality is to enable the court to determine whether a legislative measure is disproportionate in its interference with the fundamental right. In determining this, the court will have regard to whether a less intrusive H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 869 [N. V. RAMANA, J.]

measure could have been adopted consistent with the object of the law A and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law. Sanjay Kishan Kaul, J., in his concurring opinion, suggested a four-pronged test as follows: (SCC p. 632, para 638) B “(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; C

(iv) There must be procedural guarantees against abuse of such interference.” (emphasis supplied)

6868. After applying the aforesaid doctrine in deciding the constitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in the K.S. Puttaswamy (Aadhaar-5J.) case (supra), reiterated the fundamental precepts of doctrine of proportionality in relation to protection of privacy interests while dealing with personal data: “1324. The fundamental precepts of proportionality, as they emerge from decided cases can be formulated thus: 1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim; 1324.2. The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved; 1324.3. The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim; 1324.4. Restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and

H

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A 1324.5. The State must provide sufficient safeguards relating to the storing and protection of centrally stored data. In order to prevent arbitrary or abusive interference with privacy, the State must guarantee that the collection and use of personal information is based on the consent of the individual; that it is authorised by law and that sufficient safeguards exist to ensure that the data is only used for the purpose specified at the time of collection. Ownership of the data must at all times vest in the individual whose data is collected. The individual must have a right of access to the data collected and the discretion to opt out.” (emphasis supplied)

6969. This is the current state of the doctrine of proportionality as it exists in India, wherein proportionality is the key tool to achieve judicial balance. But many scholars are not agreeable to recognize proportionality equivalent to that of balancing.21

7070. In view of the aforesaid discussion, we may summarize 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. 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 leastrestrictive 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. 21 Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 C.L.J. 174 (hereinafter Rivers, “Proportionality”); Martin Luteran, Towards Proportionality as a Proportion Between Means and Ends in Cian C. Murphy and Penny Green (eds.), Law and Outsiders: Norms, Processes and “Othering” in the 21st Century (2011) (hereinafter Luteran, “Towards Proportionality”); see also the contribution of Alison L. Young in H Chapter 3 of this volume.

ANURADHA BHASIN v. UNION OF INDIA & ORS. 871 [N. V. RAMANA, J.]

7171. 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.

7272. 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 C restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.

7373. In this context, we need to note that the Petitioners have relied on a recent judgment of the High Court of Hong Kong, in Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820 to state that the Hong Kong High Court has utilised the principle to declare the “anti-mask” law as unconstitutional. In any case, we need not comment on the law laid down therein, as this Court has independently propounded the test of proportionality as applicable in the Indian context. However, we may just point out that the proportionality test needs to be applied in the context of facts and circumstances, which are very different in the case at hand.

7474. Having observed the law on proportionality and reasonable restrictions, we need to come back to the application of restrictions on the freedom of speech over the internet. F

7575. The respondent-State has vehemently opposed selective access to internet services based on lack of technology to do the same. If such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time. Such complete blocking/ prohibition perpetually cannot be accepted by this Court. G

7676. However, there is ample merit in the contention of the Government that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India. This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multifaceted approach without H

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A 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.

7777. Having discussed the general constitutional ambit of the B fundamental rights, proportionality and reasonable restrictions, and a specific discussion on freedom of expression through the internet and its restriction under Article 19(2), we now need to analyse the application of the same in the present case. F. INTERNET SHUTDOWN C 78. Having observed the substantive law concerning the right to internet and the restrictions that can be imposed on the same, we need to turn our attention to the procedural aspect.

79. It must be noted that although substantive justice under the fundamental rights analysis is important, procedural justice cannot be D sacrificed on the altar of substantive justice. There is a need for procedural justice in cases relating to restrictions which impact individuals’ fundamental rights as was recognized by this Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and the K. S. Puttaswamy(Privacy-9J.) case (supra). E 80. The procedural mechanism contemplated for restrictions on the Internet, is twofold: first is contractual, relating to the contract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act. In the present case, we F are concerned only with the statutory scheme available, particularly under the Telegraph Act, and we will therefore confine our discussion mostly to the same. However, as it would be apposite to distinguish between the different statutory mechanisms, we would touch upon these cursorily.

81. Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for G Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case (supra), upheld the constitutional validity of this Section and the Rules made thereunder. It is to be noted however, that the field of operation of this section is limited in scope.The aim of the section is not to restrict/block the internet as a whole, but only to block access to

ANURADHA BHASIN v. UNION OF INDIA & ORS. 873 [N. V. RAMANA, J.]

particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section.

82. Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, Cr.P.C., a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger. In 2015, the High B Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of Gujarat, inWrit Petition (PIL) No. 191 of 2015, considered a challenge to an order under Section 144, Cr.P.C. blocking access to mobile internet services in the State of Gujarat. The High Court of Gujarat, vide order dated 15.09.2015, upheld the restriction imposed by the Magistrate under Section 144, Cr.P.C. While the Court did not undertake a full-fledged discussion of the power of the Magistrate to issue such restrictions under Section 144, Cr.P.C., the Court observed as follows: “9.…[U]nder Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access. Under the circumstances, we do not find that the contention raised on behalf of the petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted.” (emphasis supplied) E

A Special Leave Petition was filed against the above judgment of the Gujarat High Court, being SLP (C) No. 601 of 2016, which wasdismissed by this Court in limine on 11.02.2016.

83. The position has changed since 2017, with the passage of the F Suspension Rules under Section 7 of the Telegraph Act. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet.

84. The Suspension Rules lay down certain safeguards, keeping in mind the fact that an action under the same has a large effect on the G fundamental rights of citizens. It may be mentioned here that we are not concerned with the constitutionality of the Suspension Rules, and arguments on the same were not canvassed by either side. As such, we are limiting our discussion to the procedure laid down therein. Rule 2 lays down the procedure to be followed for the suspension of telecom services, and merits reproduction in its entirety: H

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A “2.(1) Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent B authority), and in unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be: C Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order: Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours. (2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day. (3) The directions for suspension issued under sub-rule (1) shall be conveyed to designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses under section 4 of the said Act, in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic communication and its implementation shall be determined by the telegraph authority. G (4) The telegraph authority and service providers shall designate officers in every licensed service area or State or Union territory, as the case may be, as the nodal officers to receive and handle such requisitions for suspension of telecom services. (5) The Central Government or the State Government, as the H case may be, shall constitute a Review Committee.

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(i) The Review Committee to be constituted by the Central A Government shall consist of the following, namely:- (a) Cabinet Secretary-Chairman; (b) Secretary to the Government of India In-charge, Legal Affairs-Member; B (c) Secretary to the Government, Departmentof Telecommunications -Member. (ii) The Review Committee to be constituted by the State Government shall consist of the following, namely:- (a) Chief Secretary-Chairman; C (b) Secretary Law or Legal Remembrancer In-Charge, Legal Affairs-Member; (c) Secretary to the State Government (other than the Home Secretary) -Member. D (6) The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the said Act.” E

85. Rule 2(1) specifies the competent authority to issue an order under the Suspension Rules, who in ordinary circumstances would be the Secretary to the Ministry of Home Affairs, Government of India, or in the case of the State Government, the Secretary to the Home Department of the State Government. The sub-rule also provides that in certain “unavoidable” circumstances an officer, who is duly authorised, not below the rank of a Joint Secretary, may pass an order suspending services. The two provisos to Rule 2(1) are extremely relevant herein, creating an internal check as to orders which are passed by an authorised officer in “unavoidable” circumstances, as opposed to the ordinary mechanism envisaged, which is the issuing of the order by the competent authority. The provisos together provide that the orders passed by duly authorised officers in “unavoidable” circumstances need to be confirmed by the competent authority within twenty-four hours, failing which, as perthe second proviso, the order of suspension will cease to exist. The confirmation of the order by the competent authority is therefore essential, H

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A failing which the order passed by a duly authorised officer will automatically lapse by operation of law.

86. Rule 2(2) is also extremely important, as it lays down twin requirements for orders passed under Rule 2(1). First, it requires that every order passed by a competent authority under Rule 2(1) must be a B reasoned order. This requirement must be read to extend not only to orders passed by a competent authority, but also to those orders passed by an authorised officer which is to be sent for subsequent confirmation to the competent authority. The reasoning of the authorised officer should not only indicate the necessity of the measure but also what the “unavoidable” circumstance was which necessitated his passing the order. C The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules.

87. Only in such an event would the requirement of confirmation by the competent authority have any meaning, as it would allow the competent authority to properly consider the action taken by the D authorised officer. Further, the confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc. After all, it is the competent authority who has been given the power under the Suspension E Rules to suspend telecom services, with the authorised officer acting under the Suspension Rules only due to some exigent circumstances.

88. The second requirement under Rule 2(2) is the forwarding of the reasoned order of the competent authority to a Review Committee which has been set up under the Suspension Rules, within one working day. The composition of the Review Committee is provided under Rule 2(5), with two distinct review committees contemplated for the Union and the State, depending on the competent authority which issued the order under Rule 2(1). Rule 2(6) is the final internal check under the Suspension Rules with respect to the orders issued thereunder. Rule 2(6) requires the concerned Review Committee to meet within five working days of issuance of the order suspending telecom services, and record its findings about whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute, viz., Section 5(2) of the Telegraph Act.

89. This last requirement, of the orders issued under the Rules H being in accordance with Section 5(2), Telegraph Act, is very relevant to

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understand the circumstances in which the suspension orders may be A passed. Section 5(2), Telegraph Act is as follows: “5. Power for Government to take possession of licensed telegraphs and to order interception of messages xxx B (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government E or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”

90. This Court has had prior occasion to interpret Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128, a Four-Judge Bench of this Court interpreted F Section 5 of the Telegraph Act and observed as follows: “13.Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/ specially authorised officer to take possession of any telegraphs. Firstly, the occurrence of a “public G emergency” is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a pre-requisite for the exercise of power under this section, H

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A must be a “public emergency” and not any other kind of emergency. The expression public emergency has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to be read as a whole. In sub-section (1) the phrase ‘occurrence of any public emergency’ is connected with and is immediately followed by the phrase “or in the interests of the public safety”. These two phrases appear to take colour from each other. In the first part of sub-section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a “public emergency” within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section...” (emphasis supplied) E 91. The aforementioned case was followed in People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, in the context of phone-tapping orders passed under Section 5(2) of the Telegraph Act, wherein this Court observed as follows: “29. The first step under Section 5(2) of the Act, therefore, is the F occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, G (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.” H

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92. Keeping in mind the wordings of the section, and the above two pronouncements of this Court, what emerges is that the pre-requisite for an order to be passed under this sub-section, and therefore the Suspension Rules, is the occurrence of a “public emergency” or for it to be “in the interest of public safety”. Although the phrase “public emergency” has not been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it. The Hukam Chand Shyam Lal case (supra) further clarifies that the scope of “public emergency” relates to the situations contemplated under the sub-section pertaining to “sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence”.

93. The word ‘emergency’ has various connotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or mightinvolve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, notes that ‘[I]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed...’. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says- “In time of war or other public emergency threatening the life of the nation”. We may only point out thatthe ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis.

94. The second requirement of Section 5(2) of the Telegraph Act is for the authority to be satisfied that it is necessary or expedient to pass the orders in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, and must record reasons thereupon.The term ‘necessity’ and ‘expediency’ brings along the stages an emergency is going to pass through usually. A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilized under the aforesaid rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement. H

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A 95. A point canvassed by the learned counsel for the Petitioner, Ms. Vrinda Grover, with regard to the interpretation of the proviso to Section 5(2) of the Telegraph Act. The proviso to the section specifies that a class of messages, i.e., press messages intended to be published in India of correspondents accredited to the Central Government or a State Government, will be treated differently from other classes of messages. The learned counsel contended that this separate classification necessitates that an order interfering with the press would be in compliance with Section 5(2) of the Telegraph Act only if it specifically states that the press is also to be restricted. However, the aforesaid interpretation could not be supported by the petitioner with any judgments of this Court.

96. It must be noted that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism. [See B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658] E

97. The above requirement would further the rights of an affected party to challenge the orders, if aggrieved. Judicial review of the orders issued under the Suspension Rules is always available, although no appellate mechanism has been provided, and the same cannot be taken away or made ineffective. An aggrieved person has the constitutional F right to challenge the orders made under the Suspension Rules, before the High Court under Article 226 of the Constitution or other appropriate forum.

98. We also direct that all the above procedural safeguards, as elucidated by us, need to be mandatorily followed. In this context, this G Court in the Hukam Chand Shyam Lal case (supra), observed as follows: “18. It is well-settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other H

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amodes (sic) of performance are necessarily forbidden. It is A all the more necessary to observe this rule where power is of a drastic nature...” (emphasis supplied) This applies with even more force considering the large public impact on the right to freedom of speech and expression that such a B broad-based restriction would have.

99. Lastly, we think it necessary to reiterate that 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 C the existence of an alternate less intrusive remedy. Having said so, we may note that the aforesaid Suspension Rules have certain gaps, which are required to be considered by the legislature.

100. One of the gaps which must be highlighted relates to the usage of the word “temporary” in the title of the Suspension D 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 sectionof the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this context,it is necessary to E lay down some procedural safeguard till the aforesaid deficiency is cured by the legislatureto ensure that the exercise of power under the Suspension Rulesis not disproportionate. We therefore direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). The Review F Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. We clarify that looking to the fact that the G restrictions contemplated under the Suspension Rules are temporary in nature, the same must not be allowed to extend beyond that time period which is necessary.

101. Coming to the orders placed before us regarding restrictions on communication and Internet, there are eight orders that are placed H

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A before us. Four orders have been passed by the Inspector General of Police, of the respective zone, while the other four orders are confirmation orders passed by the Principal Secretary to the Government of Jammu and Kashmir, Home Department, confirming the four orders passed by the Inspector General of Police. B 102. The learned Solicitor General has apprised the Bench that the authorities are considering relaxation of the restrictions and in some places the restrictions have already been removed. He also pointed that the authorities are constantly reviewing the same. In this case, the submission of the Solicitor General that there is still possibility of danger to public safety cannot be ignored, as this Court has not been completely C apprised about the ground situation by the State. We believe that the authorities have to pass their orders based on the guidelines provided in this case afresh. The learned Solicitor General had submitted, on a query being put to him regarding the feasibility of a measure blocking only social media services, that the same could not be done. However, the D State should have attempted to determine the feasibility of such a measure. As all the orders have not been placed before this Court and there is no clarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion. E G. RESTRICTIONS UNDER SECTION 144 OF CRPC. “As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.” F 103. The Petitioners have asserted that there were no disturbing facts which warranted the imposition of restrictions under Section 144, Cr.P.C. on 04.08.2019. They strenuously argued that there had to be a circumstanceon 04.08.2019 showing that there would be an action which will likely create obstruction, annoyance or injury to any person or will G likely cause disturbance of the public tranquillity, and the Government could not have passed such orders in anticipation or on the basis of a mere apprehension.

104. In response, the learned Solicitor General, on behalf of the Respondent, argued that the volatile history, overwhelming material available even in the public domain about external aggressions, nefarious H

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secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders under Section 144, Cr.P.C.

105. These contentions require us to examine the scope of Section 144, Cr.P.C, whichreads as follows: “144. Power to issue order in urgent cases of nuisance or apprehended danger.—(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this sectionand immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. H

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A (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. D 106. Section 144, Cr.P.C. is one of the mechanismsthat enable the State to maintain public peace. It forms part of the Chapter in the Criminal Procedure Code dealing with “Maintenance of Public Order and Tranquillity” and is contained in the sub-chapter on “urgent cases of nuisance or apprehended danger”. The structure of the provision shows that this power can only be invoked in “urgent cases of nuisance or apprehended danger”.

107. Section 144, Cr.P.C. enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused, viz.- prior inquiry before exercising this power, setting out material facts for exercising this power and modifying/ rescinding the order when the situation so warrants.

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

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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 anorder under Section 144, Cr.P.C. D (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—theorder 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 B any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously. C 109. Section 144, Cr.P.C. has been the subject matter of several Constitution Bench rulings and we will briefly examine them. The constitutional validity of Section 144, Cr.P.C. under the predecessor of the 1898 Act came up for the first time before the Constitution Bench of this Court in Babulal Parate case (supra). Repelling the contention D that it is an infringement of the fundamental right of assembly, this Court upheld the provision due to the various safeguards inbuilt under Section 144, Cr.P.C. This Court opined that: a. Section 144, Cr.P.C does not confer arbitrary power on the Magistrate, since it must be preceded by an inquiry. E b. Although Section 144, Cr.P.C confers wide powers, it can only be exercised in an emergency, and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Section 144, Cr.P.C is not an unlimited power. F c. The Magistrate, while issuing an order, has to state the material facts upon which it is based. Since the order states the relevant facts, the High Court will have relevant material to consider whether such material is adequate to issue Section 144, Cr.P.C order. While considering such reasons, due weight must be G given to the opinion of the District Magistrate who is responsible for the maintenance of public peace in the district. d. This power can be exercised even when the Magistrate apprehends danger. It is not just mere “likelihood” or a “tendency”, but immediate prevention of particular acts to counteract danger. H

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e. Even if certain sections of people residing in the particular A area are disturbing public order, the Magistrate can pass an order for the entire area as it is difficult for the Magistrate to distinguish between members of the public and the people engaging in unlawful activity. However, any affected person can always apply to the Magistrate under Section 144(4), B Cr.P.C. seeking exemption or modification of the order to permit them to carry out any lawful activity. f. If any person makes an application for modification or alteration of the order, the Magistrate has to conduct a judicial proceeding by giving a hearing, and give the reasons for the decision arrived at. C

g. The order of the Magistrate under Section144, Cr.P.C is subject to challenge before the High Court. The High Court’s revisionary powers are wide enough to quash an order which cannot be supported by the materials upon which the order is supposed to be based. D

h. If any prosecution is launched for non-compliance of an order issued under Section 144, Cr.P.C., the validity of such an order under Section 144, Cr.P.C.can be challenged even at that stage.

110. The validity of the Section 144(6) under the 1898 Act again came up for consideration before a Bench of five Judges in State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337. The majority judgment declared the latter part of Section 144(6), Cr.P.C as it then existed, which enabled the State Government to extend an order passed under Section 144, Cr.P.C. indefinitely, as unconstitutional, since it did not provide limitations on the duration of the order and no mechanism was provided therein to make a representation against the duration of the order. Under the 1973 Act, a time limit has been prescribed on the maximum duration of the order.

111. A Bench of seven Judges in the Madhu Limaye case (supra) was constituted to re-consider the law laid down in Babulal Parate G (supra) and the constitutional validity of Section 144, Cr.P.C. This Court, while affirming the constitutional validity of Section 144, Cr.P.C. reiterated the safeguards while exercising the power under Section 144, Cr.P.C. The Court highlighted that the power under Section 144, Cr.P.C. must be: H

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A (a) exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, “the emergency must be sudden and the consequences sufficiently grave” (b) exercised in a judicial manner which can withstand judicial scrutiny. This Court observed that: “24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte. it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence: … These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. …..In so far as the other parts of the section are concerned the key- note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.” (emphasis supplied)

112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 H SCC 226, this Court, in deciding a review petition, elaborated on the

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circumstances in which the power under Section 144, Cr.P.C. can be A exercised. This Court held as under: “3. ...It is only where it is not practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 B of the Criminal Procedure Code which may interfere with what are, otherwise, completely legal and permissible conduct and speech. 4.….It may however be noted that the Magistrate is not concerned with individual rights in performing his duty under Section 144 but C he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. 5.… If public peace and tranquillity or other objects mentioned there are not in danger the Magistrate concerned cannot act under Section 144. He could only direct parties to go to the proper forum. D On the other hand, if the public safety, peace, or tranquillity are in danger, it is left to the Magistrate concerned to take proper action under Section 144, Cr.P.C.” (emphasis supplied)

113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC E 71, this Court held that an order passed under Section 144, Cr.P.C. is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. The Court reiterated the circumstances in which the power can be exercised. The Court observed as under: F “27. The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. G Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a H

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A given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. ….In other words, the Magistrate’s action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.

33. ...It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.” (emphasis supplied)

114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of Police,Calcutta, (1983) 4 SCC 522, a Bench of three Judges E expressed doubts about the dicta in the Gulam Abbas case (supra) on thenature of the order under Section 144, Cr.P.C. but reiterated that repetitive orders under Section 144, Cr.P.C. would be an abuse of power. This Court observed as follows: “16…. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code.” (emphasis supplied)

115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this Court emphasised the safeguards under Section 144, Cr.P.C. and the circumstances under which such an order can be issued.

ANURADHA BHASIN v. UNION OF INDIA & ORS. 891 [N. V. RAMANA, J.]

116. The learned counsel on behalf of the Petitioners vehemently contested the power of the Magistrate to pass the aforesaid orders under Section 144, Cr.P.C. as there existed no incumbent situation of emergency. It was argued that such orders passed in mere anticipation or apprehension cannot be sustained in the eyes of law. As explained above, the power under Section 144, Cr.P.C. is a preventive power to preserve public order. In Babulal Parate case (supra), this Court expressly clarified that this power can be exercised even where there exists an apprehension of danger. This Court observed as under: “25. The language of Section 144 is somewhat different. The test laid down in the section is not merely “likelihood” or “tendency”. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.” D (emphasis supplied)

117. In view of the language of the provision and settled law, we are unable to accept the aforesaid contention.

118. Further, learned senior counsel Mr. Kapil Sibal expressed his concern that in the future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections. In this context, it is sufficient to note thatthe power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed [refer to Babulal Parate case (supra)]. It is enough to note that sufficient safeguards exist in Section 144, Cr.P.C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the petitioner. H

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A 119. The Petitioners have also contended that ‘law and order’ is of a narrower ambit than ‘public order’ and the invocation of ‘law and order’ would justify a narrower set of restrictions under Section 144, Cr.P.C.

120. In this context, it is pertinent for us to emphasize the holding rendered by a five-Judge Bench of this court in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, wherein this Court emphasised the difference between “public order” and “law and order” situation. This Court observed as under: “55. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding E a clause to the Defence of India Rules.” (emphasis supplied)

121. This Court therein held that a mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order. Similarly, the seven-Judge Bench in Madhu Limaye case (supra) F further elucidated as to when and against whom the power under Section 144, Cr.P.C.can be exercised by the Magistrate. This Court held therein, as under: “24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to G prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial H

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scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application…. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.” (emphasis supplied)

122. This Court in Ramlila Maidan Incident, In re case (supra) further enunciated upon the aforesaid distinction between a “public order” and “law and order” situation: E “44. The distinction between “public order” and “law and order” is a fine one, but nevertheless clear. A restriction imposed with “law and order” in mind would be least intruding into the guaranteed freedom while “public order” may qualify for a greater degree of restriction since public order is a matter of even greater social concern. …

45. It is keeping this distinction in mind, the legislature, under Section 144 CrPC, has empowered the District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144-A CrPC, which itself was introduced by Act 25 H

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A of 2005 [Ed.: The Code of Criminal Procedure (Amendment) Act, 2005.] , the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place, where it B is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order.…” (emphasis supplied)

123. In view of the above, ‘law and order’, ‘public order’ and C ‘security of State’ are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two distinct situations. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

124. Learned senior counsel, Mr. Kapil Sibal also contended that an order under Section 144, Cr.P.C. cannot be issued against the public generally andmust be specifically intended against the people or the group which is apprehended to disturb the peace and tranquillity. This Court in the Madhu Limaye case (supra), has clarified that such an order can be passed against either a particular individual or the public in general. This Court was aware that, at times, it may not be possible to distinguish between the subject of protection under these orders and the individuals against whom these prohibitory orders are required to be passed: “27.… Ordinarily the order would be directed against a person found acting or likely to act in a particular way. A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law.” (emphasis supplied) H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 895 [N. V. RAMANA, J.]

125. The counsel on behalf of the Petitioners have argued that the validity of the aforesaid restrictions has to be tested on its reasonableness. The restrictions imposed must be proportionate to the proposed/perceived threat. In the context of restrictions imposedby way of orders passed under Section 144, Cr.P.C., this Court, in Ramlila Maidan Incident case (supra), held that an onerous duty is cast upon the concerned Magistrate to first assess the perceived threat and impose the least invasive restriction possible. The concerned Magistrate is duty bound to ensure that the restrictions should never be allowed tobe excessive either in nature or in time. The relevant portion is extracted below: “39. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty... D …

58. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/ E contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is F cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility.” (emphasis supplied)

126. As discussed above, the decisions of this Court in the Modern G Dental College case (supra) and K.S. Puttaswamy (Aadhaar-5J.) case (supra), which brought the concept of proportionality into the fold, equally apply to an order passed under Section 144, Cr.P.C.

127. The Petitioners also contended that orders passed under Section 144, Cr.P.C., imposing restrictions, cannot be a subject matter of H

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A privilege. Moreover, material facts must be recorded in the order itself. On the other hand, the learned Solicitor General argued that the empowered officers were in the best position to know the situation on the ground and accordingly the aforesaid orders were passed. There existed sufficient speculation on the ground to suggest abrogation of Article 370, and the respective Magistrates, being aware of the circumstances, imposed the aforesaid restrictions in a periodic manner, indicating due application of mind. The learned Solicitor General further argued that this Court cannot sit in appeal over the order passed by the magistrate, particularly when there is no imputation of mala fide.

128. To put a quietus to the aforesaid issue it is pertinent to reproduce and rely ona relevant extract from the Ramlila Maidan Incident, In re case (supra): “56. Moreover, an order under Section 144 CrPC being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of CrPC, such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In Praveen Bhai Thogadia [(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimisation by those in power. Normally, interference should be the exception and not the rule.” (emphasis supplied)

129. We may note that orders passed under Section 144, Cr.P.C. have direct consequences upon the fundamental rights of the public in H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 897 [N. V. RAMANA, J.]

general. Such a power, if used in a casual and cavalier manner, would A result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The 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- B notified. This Court, in the case of Babulal Parate (supra), also stressed upon the requirement of having the order in writing, wherein it is clearly indicated that opinion formed by the Magistrate was based upon the material facts of the case. This Court held as under: “9. Sub-section (1) confers powers not on the executive but on certain Magistrates…Under sub-section (1) the Magistrate C himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the sub-section requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The sub-section further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints.” (emphasis supplied)

130. 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 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 F Section 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, although it has not been stated in clear terms, that it is an issue of national security and cross border terrorism. Before we part, we need to caution against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. G

131. Although, the Respondents submitted that this Court cannot sit in appeal or review the orders passed by the executive, particularly those pertaining to law and order situation, the scope of judicial review with respect to law and order issues has been settled by this Court. In H

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A State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684, this Court observed, specifically in the context of Section 144, Cr.P.C., as follows: “6. Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. ……Therefore, whenever the authorities concerned in charge of law and order find that a person’s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings. 7... If they feel that the presence or participation of any person in the meeting or congregation would be objectionable, for some patent or latent reasons as well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences it may result in if not prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life - preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of courts unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power, and interference as a matter of

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ANURADHA BHASIN v. UNION OF INDIA & ORS. 899 [N. V. RAMANA, J.]

course and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent…” (emphasis supplied)

132. It is true that we do not sit in appeal, however, the existence of the power of judicial review is undeniable. We are of the opinion that it is for the Magistrate and the State to make an informed 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.

133. 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. 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 arepreventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or fora longer duration, the threshold requirement is relatively higher.

134. 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.

135. During the course of hearing, on 26.11.2019, the learned Solicitor General sought the permission of this Court to produce certain confidential documents to be perused by this Court. However, he objected to revealing certain documents to the Petitioners, claiming sensitivity and confidentiality. Learned senior counsel Mr. Kapil Sibal stated that the Court could assume the existence of such intelligence inputs and materials. In view of such stand, we have not gone into the adequacy of H

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A the material placed before this Court; rather, we have presumed existence of the same.

136. One of the important criteria to test the reasonableness of such a measure is to see if the aggrieved person has the right to make a representation against such a restriction. It is a fundamental principle of law that no party can be deprived of his liberty without being afforded a fair, adequate and reasonable opportunity of hearing. Therefore, in a situation where the order is silent on the material facts, the person aggrieved cannot effectively challenge the same. Resultantly, there exists no effective mechanism to judicially review the same. [See State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the same, it is imperative for the State to make such orders public so as to make the right available under Section 144(5), Cr.P.C. a practical reality.

137. One thing to remember is that no mala fide has been alleged by the Petitioners. It was not denied by the Petitioners that the State has the power to pass such restrictive order. Additionally, the Respondents D contended that the historical background of the State- cross border terrorism, infiltration of militants, security issues, etc., cannot be forgotten and must be kept in mind while testing the legality of the orders. Further, the Respondent submitted that the orders were passed in the aforementioned context and in the anticipated threat to law and order, to E prevent any loss of life, limb and property. However, these orders do not explain the aforesaid aspects.

138. Although the restrictions have been allegedly removed on 27.09.2019, thereby rendering the present exercise into a virtually academic one, we cannot ignore non-compliance of law by the State. F As learned senior counsel Mr. Kapil Sibal submitted,this case is not just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this Court has to caution theGovernment.Hence, we direct that the authorities must follow the principles laid down by this Court and uphold the rule of law.

G 139. It is contended by the Petitioners that while the Respondentsstated that there are no prohibitory orders during the day and there are certain restrictions in certain areas during the night, on the ground, the situation is different as the police is still restricting the movement of the people even during the day. If that is so, it is not proper and correct for the State to resort to such type of acts. A Government, if H

ANURADHA BHASIN v. UNION OF INDIA & ORS. 901 [N. V. RAMANA, J.]

it thinks that there is a threat to the law and order situation or any other A such requirement, must follow the procedure laid down by law, taking into consideration the rights of the citizens, and pass appropriate need- based orders.In view of the same, appropriate directions are provided in the operative part of this judgment.

140. Before parting we summarise the legal position on Section B 144, Cr.P.C as follows: i. The power under Section 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. 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 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. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. v. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power. H. FREEDOM OF THE PRESS

141. The Petitioner in W.P. (C) No. 1031 of 2019 has filed the petition basing her contention on the following factual premise, as averred:

13. Writ Petition (Civil) No. 1031 of 2019 was filed on 10-08-2019 under Article 32 of the Constitution of India by the H