Citation-2019 SCC OnLine SC 1725
Court– Supreme Court of India
Bench-N.V. Ramana, V. Ramasubramanian
Petitiones: Anuradha Bhasin , Ghulam Nabi Azad
Respondents: Mr. K.K Venugopal , lead Attorney General for Union of India and Mr. Tushar Mehta, Solicitor General for the state of Jammu and Kashmir.
The issue began with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make their safe arrangements to go back. Subsequently, educational institutions and offices were also shut down until further orders. On August 4, 2019 internet services, mobile connectivity and landline were also shut down until further orders.
On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of CrPC. Due to such steps, the journalist movements were restricted and this was challenged under Article 19 of the Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation. In the light of such circumstances, the Supreme Court, dealt with the legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution.
- Whether the Government can 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 is 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 were valid?
- Whether the freedom of press of the Petitioner was violated due to the restrictions?
On issue 1-
Learned senior counsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. It was submitted that the conduct of the State, in producing documents and status reports during argumentation, was improper, as it did not allow the Petitioners with sufficient opportunity to rebut the same. It was further contended that as per the principles of natural law. The necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege.
The orders passed under Section 144 of CrPC can be deemed to be preventive in nature concerning the security and safety of the citizens. He submitted that seeing the situation of unrest in regard to the abrogation of Art.370 and the violence marred historical background of Jammu and Kashmir, order passed can be justified under the maintenance of “the security of the state”.
On issue 2-
Both the learned counsels representing the petitioners contented that the absolute restriction on internet was not necessary and that a less restrictive way could have been undertaken rather than a blanket order. The petitioners jobs suffered because the petitioner, being executive editor of one of the major newspapers, was not able to function post 05.08.2019, due to various restrictions imposed on the press. Print media came to a grinding halt due to non−availability of internet services, which in her view, is absolutely essential for the modern press. Curtailment of the internet, is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality. Also, freedom to speech and expression must enable an individual to discuss even the burning topics of the day like the removal of Art.370.
The learned Solicitor General contended that the jurisprudence on free speech relating to newspapers is different when applied to the internet, as both the media are different in nature. While newspapers only allowed one way communication, the internet makes two way communication by which spreading of messages is very easy. This inturn often spreads hateful and false messages endangering the security and peace of the area. The different context should be kept in mind by the Court while dealing with the restrictions with respect to the two media.
On issue 3-
The learned council contended that, The State ought to balance the safety of its people with their lawful exercise of the fundamental rights provided to them. On internet restrictions, the learned senior counsel contended that such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, less restrictive measures, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has previously been done in India in line with prohibiting human trafficking and child pornography websites.
The learned Solicitor General submitted that it was practically impossible to segregate, and control, the troublemakers from the ordinary citizens. Further, he submitted that social media, which allowed people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence; hate messages could be sent in light of the recent abrogation of Art.370. Hence, The purpose of the limited and restricted use of internet is to ensure that the situation on the ground would not be provoked by targeted messages from outside the country.
On issue 4-
The learned senior counsel contended that such an order is made to deal with a law and order situation, but the orders do not indicate any existing law and order issue, or apprehension there of. Learned senior counsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. cannot be passed to the public generally, and must be specifically against the people or the group which is apprehended to disturb the peace. It is necessary for the State to identify the persons causing the problem, and an entire State cannot be brought to a halt.
Both the learned Attorney General and Solicitor general contended that given the historical and political background of the State of Jammu and Kashmir it is evident that the state is prone to violence and both physical and digital cross violent terrorism ; which validated the the necessity of the orders under Section 144, Cr.P.C.
On issue 5-
The petitioners contended that restrictions on travelling and interned directly intervened in their job of publishing daily news ; including the discussion on the abrogation of Art.370. Lastly, the learned senior counsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter; crippling their day to day functioning.
The learned Solicitor General submitted various figures indicating that the people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the petitioner was situated. The learned Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the population.
The court directed the respondents to publish all orders concerning the restrictions ; including the restrictions over the internet .So, that people could duly challenge it before the appropriate forum.
The freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is protected by Article 19(1)(a) and Article 19(1)(g) of the constitution and that if, they are restricted , it should be done according to the proportionality test.
Although the government can rightfully suspend internet access , it needs to do it on a temporary basis ; which it failed to do in this case. Hence, the government was asked to review its suspension orders and lift those which were not on a temporary basis.
Restrictions under sec. 144 CrPC cannot be applied to suppress genuine expression of discontentment and are subject to judicial inquiry. Thus, the state was ordered to review its decisions.
The court concluded that although the petitioner was unable to produce enough proof of a direct effect of the restrictions on press, there was certainly some chilling indirect effects on the freedom of press. The court highlighted the importance of freedom of press in a democracy and asked the respondents to respect it at all times.