The problem starts with a security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, instructing them to shorten their stay and make safe arrangements for return. Schools and offices were also closed pending further orders. On August 4, 2019, internet, mobile connectivity, and landlines were turned off until further notice.
“On August 5, 2019, the President of India issued Constitutional Order No. 272, which applied all provisions of the Indian Constitution to Jammu and Kashmir, removing its special status that had existed since 1954”. “On the same day, due to the circumstances, the District Magistrate issued an order restricting movement and public gathering, citing a violation of peace and tranquillity under Section 144 of the Criminal Procedure Code”.
“As a result, journalistic movements were hampered, which was challenged under Article 19 of the Constitution, which guarantees freedom of speech and expression, as well as the right to practice any trade or profession.”
“In this regard, the Supreme Court has challenged the legality of internet shutdowns and movement restrictions under Article 32 of the Constitution”.
Issues Raised:
- Can the Government claim exemption from producing all the orders passed under Section 144, CrPC, and other orders under the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade, or business over the Internet a part of the fundamental rights under Part III of the Constitution?
- Whether the Government’s action of prohibiting internet access is valid?
- Whether the imposition of restrictions under Section 144, CrPC valid?
- Did the restrictions in W.P. (C) No. 1031 of 2019 violate the petitioner’s freedom of press??
Important Contentions:
- “Contentions on behalf of Petitioners (Represented by Ms. Vrinda Goyal, Senior Counsel Mr. Kapil Sibbal)”:
- The restrictions do not meet the reasonableness and proportionality test for their goal.
- Section 144’s restrictions were based on the belief that there was an imminent threat to law and order in the valley, which was not the case because public order is not the same as law and order, and neither was in jeopardy.
- “The State’s order to restrict internet services under the Suspension rules did not follow proper procedure, implying a complete restriction are overbroad and excessive because the government failed to implement the least restrictive measures that prevent people from lawfully exercising their fundamental rights”.
- “Contentions on behalf of Intervenors (Represented by Senior Counsels Mr. Huzefa Ahmadi, Mr. Dushyant Dave, and Ms. Meenakshi Arora)”:
- “According to Article 19(2) of the Constitution, the restrictions must be reasonable and meet the proportionality and necessity test”.
- When assessing the proportionality of restrictions, consider their impact on fundamental rights, including legal and physical rights, as well as the fear they instill in the population.
- Balancing national security and counter-terrorism measures with citizens’ rights and liberties is crucial. In the circumstances described above, giving the state complete authority to restrict fundamental rights would be overly broad.
- The restrictions limited J&K citizens’ ability to discuss and learn about the constitutional amendment repealing the state’s special category status.
- The Suspension Rules’ restrictions were intended to be temporary, but they lasted more than 100 days, which is unreasonable.
- “Contentions on behalf of the Respondent (Represented by Mr. K.K Venugopal, Learned Attorney General of India, and Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir)”:
- “Restrictions were deemed ‘necessary’ to prevent cross-border terrorism and internal militancy. Even before it was repealed, Article 370 sparked speculation”.
- Courts have limited authority to challenge officers’ judgment in imposing pre-emptive measures due to national security concerns.
- Internet services were not restricted in Jammu and Ladakh, indicating no blanket ban. The petitioners exaggerated the impact of the restrictions because individual movement was never restricted and was only limited in specific areas that were later relaxed.
- Free speech standards for newspapers and the Internet are similar, making it impossible to restrict access to specific websites or sections.
Court’s decision with reasoning:
- “Can the government claim an exemption from producing all orders issued by Section 144, CrPC, and other Suspension Rules?”
“The court ruled that the state had to produce the order imposing restrictions before the court. It cited the difficulty in determining the legality of the restriction imposed when the state refused to produce the order in court”. “On the state’s obligation to disclose information, particularly in writ petitions, the court cited the decision in Ram Jethmalani v. Union of India, which stated that for Article 32 to be meaningful, petitioners must be provided with all relevant information required to articulate the case, particularly when the state knows the information”.
Article 19 can be interpreted in such a way that the right to information is a key component of free speech and expression. The Supreme Court went on to say, “A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” This obligates the state to protect fundamental rights and not disregard them carelessly.
Furthermore, the state cannot pass any law in secret simply because of apprehension about danger. The court adds that James Madison stated that “a popular government, without popular information or the means of obtaining it, is but a prelude to a farce or a tragedy; or perhaps both.” Knowledge will always govern ignorance, and those who wish to be their own governors must arm themselves with the power that knowledge provides.”
- “Is freedom of speech and expression, as well as the freedom to practice any profession, trade, or business over the Internet, among the fundamental rights guaranteed by Part III of the Constitution?”
“The court determined that freedom of expression on the internet is one of the “integral parts” of Article 19(1)(a).” The court has emphasized earlier decisions in which it has protected new forms of expression. “According to Indian Express v. Union of India, freedom of the print medium is a fundamental right protected by Article 19(1)(a)”. “Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana established that citizens have the right to exhibit films, which is now protected by Article 19(1)(a)”. In the catena of judgments, the court held that freedom of speech is a fundamental right that can be expressed through various means. Nowadays, the Internet is one of the primary means of disseminating information; thus, freedom of speech and expression via the internet is a fundamental right under Article 19(1)(a), and restrictions may be imposed in accordance with Article 19(2).
“The Court discussed the current state of the U.S. First Amendment, concluding that speech that incites violence does not constitute free speech. During the American Civil War, Clement L. Vallandigham described war as ‘wicked, cruel, and unnecessary’. Later, he was convicted and imprisoned during the war. The United States enacted the Espionage Act of 1917, which punishes anyone who wilfully caused or attempted to cause insubordination, disloyalty, or mutiny by refusal from duty or naval services.”
“In Abraham v. United States, Justice Holmes stated that punishing speech that intends to cause a clear and imminent danger is more important during wartime because war opens up danger that does not exist at other times”. “In Brandenburg v. Ohio, the court ruled that the state cannot punish advocacy for any unlawful conduct unless it is intended or likely to incite ‘imminent lawless action’.”
In CPIO v Subhash Chandra Aggarwal, the Court defined proportionality as “not restricting a right beyond what is necessary to fulfill the legitimate interest of the countervailing interest in question.” “Lord Diplock’s aphorism ‘you must not use a steam hammer to crack a nut, if a nutcracker would do?’ sums it up nicely.” “In Modern Dental College & Research Centre v. State of Madhya Pradesh, it was stated that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected, and limiting some rights in the public interest may therefore be justified.” “When two fundamental rights clash, they must be balanced so that they can “harmoniously coexist with the others.”
- “Are the restrictions imposed under Section 144, CrPC valid??”
According to the Court, Section 144 CrPC is one of the mechanisms that allow the State to maintain public order by taking preventive measures to deal with imminent public menaces or threats. However, the Section is not absolute; rather, it includes safeguards such as prior inquiry before exercising the power and the ability to modify or rescind the order if the situation warrants it. The Supreme Court vigorously debated various judicial precedents concerning Section 144 of the CrPC.
“In State of Bihar v. Kamla Kant Mishra, the Supreme Court declared the latter part of Section 144(6) unconstitutional because it did not limit the duration of the order”. “In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, the Supreme Court emphasized that the power under Section 144 CrPC must be exercised in urgent situations, with “the emergency being sudden and the consequences sufficiently grave”; it must also be exercised in a judicial manner that can withstand judicial scrutiny.” Aside from this case, the Court has reiterated several times the circumstances under which Section 144 can be imposed.
“In Gulam Abbas v. State of Uttar Pradesh, the Court ruled that an order issued under Section 144 CrPC is an executive order that can be challenged through writ jurisdiction under Article 226 of the Constitution”. “In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, the Court reiterated that repeating powers under Section 144 of the CrPC would be an abuse of power.”
- “Did the restrictions in W.P. (C) No. 1031 of 2019 violate the petitioner’s freedom of the press?”
“The petitioners contended that restrictions on movement and communication imposed in Jammu and Kashmir directly limited press freedom and journalists’ ability to perform their professional duties. The Court denied this request. The Court began by discussing freedom of the press, citing the case of Channing Arnold v. The Emperor, a Privy Council decision that recognized press freedom for the first time.” Therefore, it is unquestionable that freedom of press is one of the quintessential features of a democracy, and it is very well protected by the Constitution.
Conclusion:
In this case, the court issued several decisions that offered hope for improvement in this area. “To summarize, the court ruled that the government cannot claim an exception from producing any order before the court issued under Section 144 of the CrPC, and whether the government can claim an exemption or not is a question of fact that must be decided by the court in each case based on the facts and circumstances”. Furthermore, the court stated that nowadays, the internet has become an essential part of everyday life, and thus freedom of speech and expression, as well as freedom to practice any profession, trade, or business over the Internet, are part of the fundamental rights under part III of the constitution.
“Furthermore, the court ruled that while prohibiting internet access is legal, there must be “unavoidable circumstances” for the order to remain in effect. Section 144 of the CrPC allows for the imposition of restrictions based on apprehension of danger,” but it cannot suppress legitimate public opinion, and repeated orders of restrictions result in abuse of power. In the most recent issue, the court does not get involved because the petitioner has resumed publication. However, it stated that as a responsible government, freedom of the press must be protected.
The Court stated that under Section 144 CrPC, even if there is apprehension of danger, the said Section can be imposed. However, this power can be misused by the government or the state for their benefit, as they can impose the Section whenever it suits their needs or aspirations, without their knowledge. As a result, there should be an authority in place to check the government’s power without bias or neutrality on the issue.
As a result, it can be concluded that the doctrines established in this case will stand the test of time and can be applied more judiciously to render justice. According to Robert Browning’s poem Rabbi Ben Ezra, the doctrines may yet “come grow old with me, the best is yet to be”.
Karthik Pachauri
Symbiosis Law School, Pune