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On January 10, a Supreme Court bench comprising Justices NV Ramana, Surya Kant and BR Gavai, delivered a noteworthy judgment in a case concerning the shutdown of communications in Kashmir. This was in relation to two petitions; one by Kashmir Times editor Anuradha Bhasin and another by Congress party leader Ghulam Nabi Azad, both of which had been clubbed together. The judgment had many noteworthy aspects.
Internet, Freedom of Press, Business and Trade
On the primary contention that prohibitory orders had a chilling effect on freedom of press, the court said, “There is no doubt that the freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society.”
Significantly, the court ruled, “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.”
On the subject of temporary suspension of internet, the court said, “An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only.” It added, “In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited ebanking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.”
On the use of prohibitory orders under section 14 that prevent assemble of four or more people, the court ruled, “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.” Additionally, the court said, “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.”
More importantly the judgment says, “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.” Significantly, the court said, “Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.”
Liberty vs Security
The judgment tackles the liberty vs security question saying, “Although the choice is seemingly challenging, we need to clear ourselves from the platitude of rhetoric and provide a meaningful answer so that every citizen has adequate security and sufficient liberty. The pendulum of preference should not swing in either extreme direction so that one preference compromises the other.”
How temporary is temporary suspension?
The judgment tackles the loopholes in provisions regarding temporary suspension of services head on, saying, “… 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 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. One of the gaps which must be highlighted relates to the usage of the word “temporary” in the title of the Suspension Rules. Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation.”
The judgment further says, “Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this context, it is necessary to lay down some procedural safeguard till the aforesaid deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is not disproportionate. We therefore direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). The Review Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. We clarify that looking to the fact that the restrictions contemplated under the Suspension Rules are temporary in nature, the same must not be allowed to extend beyond that time period which is necessary.”
Other noteworthy aspects
The judgment also takes note of the groundwork laid down by the Modi administration before the abrogation of article 370 in Kashmir saying, “The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas.”
This is significant as it shows a clear connection between the series of events preceding the abrogation of article 370, despite the regime’s insistence that they are independent and unconnected.
The entire judgment may be read here:
Kashmir Blackout: In Conversation with Anuradha Bhasin
Abrogation of Article 370: SC refers petitions to Constitution Bench, issues notices to Center
Lift the Media Gag in J & K, Editor, Greater Kashmir petitions SC