Liberty and security – Paradise on Earth – Section 144, Cr.P.C. “Paradise on Earth”, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent contradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this context, this Court’s job is compounded by the magnitude of the task before it. It goes without saying that this Court will not delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner. Liberty and security have always been at loggerheads. comparative harm. In this frame­work, the Court is required to see whether the impugned restrictions, due to their broad­based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06­08­2019 to 11­10­2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the 126 area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and considering that the aforesaid Petitioner has now resumed publication, we do not deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely. I. CONCLUSION 152. In this view, we issue the following directions: a. The Respondent State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum. b. 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 127 rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality. c. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration. e. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein. f. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we 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). g. We direct the respondent State/competent authorities to review all orders suspending internet services forthwith. h. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed. i. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­banking facilities, hospitals services and 128 other essential services, in those regions, wherein the internet services are not likely to be restored immediately. j. 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. k. 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. l. 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. m.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. n. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power. o. The Respondent State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1031 OF 2019
ANURADHA BHASIN …PETITIONER
VERSUS
UNION OF INDIA AND ORS. …RESPONDENT(S)
And
WRIT PETITION (CIVIL) NO. 1164 OF 2019
GHULAM NABI AZAD …PETITIONER
VERSUS
UNION OF INDIA AND ANR. …RESPONDENT(S)
JUDGMEN T
TABLE OF CONTENTS
Introduction A
Contentions B
Issues C
Production of Orders D
Fundamental Rights under Part III and restrictions
thereof
E
Internet Shutdown F
Restrictions under Section 144, Cr.P.C. G
1
REPORTABLE
Freedom of the Press H
Conclusion I
N. V. RAMANA, J.
A. INTRODUCTION
“It was the best of times, it was the worst
of times,
it was the age of wisdom, it was the age of
foolishness,
it was the epoch of belief, it was the epoch
of incredulity,
it was the season of Light, it was the
season of Darkness,
it was the spring of hope, it was the winter
of despair,
we had everything before us, we had
nothing before us,
we were all going direct to Heaven, we
were all going direct the other way­
in short, the period was so far like the
present period, that some of its noisiest
authorities insisted on its being received,
for good or for evil, in the superlative
degree of comparison only.”
­Charles Dickens in A Tale of Two Cities
2

  1. Although cherished in our heart as a “Paradise on Earth”, the
    history of this beautiful land is etched with violence and
    militancy. While the mountains of Himalayas spell tranquillity,
    yet blood is shed every day. In this land of inherent
    contradictions, these petitions add to the list, wherein two sides
    have shown two different pictures which are diametrically
    opposite and factually irreconcilable. In this context, this Court’s
    job is compounded by the magnitude of the task before it. It goes
    without saying that this Court will not delve into the political
    propriety of the decision taken herein, which is best left for
    democratic forces to act on. Our limited scope is to strike a
    balance between the liberty and security concerns so that the
    right to life is secured and enjoyed in the best possible manner.
  2. Liberty and security have always been at loggerheads. The
    question before us, simply put, is what do we need more, liberty
    or security? Although the choice is seemingly challenging, we
    need to clear ourselves from the platitude of rhetoric and provide
    a meaningful answer so that every citizen has adequate security
    and sufficient liberty. The pendulum of preference should not
    swing in either extreme direction so that one preference
    3
    compromises the other. It is not our forte to answer whether it is
    better to be free than secure or be secure rather than free.
    However, we are here only to ensure that citizens are provided all
    the rights and liberty to the highest extent in a given situation
    while ensuring security at the same time.
  3. The genesis of the issue starts with the Security Advisory issued
    by the Civil Secretariat, Home Department, Government of
    Jammu and Kashmir, advising the tourists and the Amarnath
    Yatris to curtail their stay and make arrangements for their
    return in the interest of safety and security. Subsequently,
    educational institutions and offices were ordered to remain shut
    until further orders. On 04.08.2019, mobile phone networks,
    internet services, landline connectivity were all discontinued in
    the valley, with restrictions on movement also being imposed in
    some areas.
  4. On 05.08.2019, Constitutional Order 272 was issued by the
    President, applying all provisions of the Constitution of India to
    the State of Jammu and Kashmir, and modifying Article 367
    (Interpretation) in its application to the State of Jammu and
    Kashmir. In light of the prevailing circumstances, on the same
    day, the District Magistrates, apprehending breach of peace and
    4
    tranquillity, imposed restrictions on movement and public
    gatherings by virtue of powers vested under Section 144, Cr.P.C.
    Due to the aforesaid restrictions, the Petitioner in W.P. (C) No.
    1031 of 2019 claims that the movement of journalists was
    severely restricted and on 05.08.2019, the Kashmir Times
    Srinagar Edition could not be distributed. The Petitioner has
    submitted that since 06.08.2019, she has been unable to publish
    the Srinagar edition of Kashmir Times pursuant to the aforesaid
    restrictions.
  5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and
    Mr. Ghulam Nabi Azad) approached this Court under Article 32
    of the Constitution seeking issuance of an appropriate writ for
    setting aside or quashing any and all order(s), notification(s),
    direction(s) and/or circular(s) issued by the Respondents under
    which any/all modes of communication including internet,
    mobile and fixed line telecommunication services have been shut
    down or suspended or in any way made inaccessible or
    unavailable in any locality. Further, the Petitioners sought the
    issuance of an appropriate writ or direction directing
    Respondents to immediately restore all modes of communication
    including mobile, internet and landline services throughout
    5
    Jammu and Kashmir in order to provide an enabling
    environment for the media to practice its profession. Moreover,
    the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to pass
    any appropriate writ or direction directing the Respondents to
    take necessary steps for ensuring free and safe movement of
    reporters and journalists and other media personnel. Lastly, she
    also pleaded for the framing of guidelines ensuring that the rights
    and means of media personnel to report and publish news is not
    unreasonably curtailed.
  6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No. 1164
    of 2019), alleges that he was stopped from travelling to his
    constituency in Jammu and Kashmir. In this context, he alleges
    that due to the aforesaid restrictions, he is not able to
    communicate with the people of his constituency.
  7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad), was
    listed before a Co­ordinate Bench of this Court on 16.09.2019,
    the following order was passed:
    “Issue notice.
    We permit the petitioner to go to Srinagar and
    visit the following districts, subject to
    restrictions, if any:­
    (i) Srinagar, (ii) Anantnag, (iii) Baramulla and
    (iv) Jammu.
    6
    The petitioner has undertaken before the Court
    on his own volition that he will not indulge in
    any political rally or political activity during his
    visit. The visit will solely be concerned with
    making an assessment of the impact of the
    present situation on the life of the daily wage
    earners, if any.
    So far as prayers (2) and (3) of the writ petition
    are concerned, the State as well as, the Union
    of India will respond within two weeks hence.”
  8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019, the
    matter was ordered to be tagged along with W.P. (C) No. 1013 of
    2019 (five­Judge Bench) and was later de­tagged. On 16.09.2019,
    a Co­ordinate Bench of this Court ordered the following:
    “The State of Jammu & Kashmir, keeping in
    mind the national interest and internal
    security, shall make all endeavours to ensure
    that normal life is restored in Kashmir; people
    have access to healthcare facilities and
    schools, colleges and other educational
    institutions and public transport functions and
    operates normally. All forms of communication,
    subject to overriding consideration of national
    security, shall be normalized, if required on a
    selective basis, particularly for healthcare
    facilities.”
    When the said writ petition was listed before this Bench on
    01.10.2019, in light of expediency, this Bench directed that no
    further intervention applications shall be entertained. However,
    liberty was granted to file additional documents in support of
    applications for intervention. When the matter came up for
    7
    hearing on the next date on 16.10.2019, the following order was
    passed:
    “When these matters came up for hearing
    today, learned Solicitor General appearing for
    the Union of India made a submission that
    after filing the counter affidavit in these
    matters, certain further developments have
    taken place and some of the restrictions
    imposed have been relaxed, particularly with
    reference to mobile connectivity as well as the
    landlines services etc. and, therefore, he wants
    to file another additional affidavit indicating
    the steps taken by the Government about
    relaxation of some restrictions. He also made a
    request to accommodate him for a week only.
    During the course of hearing, we are informed
    by the learned
    Senior counsel appearing for the petitioners
    that the orders which are issued by the
    authorities relating to the restrictions imposed
    have not been provided to them so far.
    When we asked the learned Solicitor General
    about the non­ supply of orders issued by the
    authorities relating to the restrictions imposed,
    particularly with respect to the cell phone
    services as well as Section 144 proceedings, he
    claims privilege over those orders. He, however,
    states that those orders can be produced
    before this Court.
    However, if for any reason, learned Solicitor
    General does not want to give a copy of those
    orders to the petitioners, we request him to file
    an affidavit indicating the reasons for claiming
    such privilege.”
    8
    On 24.10.2019, after the aforesaid orders were placed on record
    and pleadings were complete, the matter was listed for final
    disposal on 05.11.2019. Taking into account the concerns
    expressed by the parties, we extensively heard the counsel for
    both sides, as well as all the Intervenors on 05.11.2019,
    06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019,
    26.11.2019 and 27.11.2019, and considered all the submissions
    made and documents placed before us.
    B. CONTENTIONS
    Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C) No.
    1031 of 2019
     It was contended that the petitioner, being executive editor
    of one of the major newspapers, was not able to function
    post 05.08.2019, due to various restrictions imposed on the
    press.
     Print media came to a grinding halt due to non­availability
    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.
     The procedure that is to be followed for restricting Internet
    services is provided under the Temporary Suspension of
    Telecom Services (Public Emergency or Public Service)
    Rules, 2017 [hereinafter “Suspension Rules”], which were
    notified under the Telegraph Act. The Suspension Rules
    9
    indicate that the restriction imposed was contemplated to be
    of a temporary nature.
     The orders passed under the Suspension Rules placed on
    record by the State of Jammu and Kashmir, regarding the
    restrictions pertaining to the Internet and phones (either
    mobile or telephone were ex facie perverse and suffered from
    non­application of mind.
     Learned counsel submitted that the orders were not in
    compliance with the procedure prescribed under the
    Suspension Rules. Further, the orders did not provide any
    reasoning as to the necessity of the restrictions, as is
    required under the Suspension Rules.
     Lastly, the learned counsel contended that the orders are
    based on an apprehension of likelihood that there would be
    danger to a law and order situation. Public order is not the
    same as law and order, and the situation at the time when
    the orders were passed did not warrant the passing of the
    orders resulting in restrictions.
    Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. (C)
    No. 1164 of 2019
     Learned senior counsel submitted that the orders of the
    authorities had to be produced before the Court, and cannot
    be the subject of privilege, as claimed by the State.
     It was submitted that the conduct of the State, in producing
    documents and status reports during argumentation, was
    improper, as it did not allow the Petitioners with sufficient
    opportunity to rebut the same.
     Learned senior counsel submitted that the Union of India
    can declare an emergency only in certain limited situations.
    Neither any ‘internal disturbance’ nor any ‘external
    aggression’ has been shown in the present case for the
    imposition of restrictions which are akin to the declaration
    of Emergency.
     With respect to the orders restricting movement passed
    under Section 144, Cr.P.C., the learned senior counsel
    contended that such an order is made to deal with a ‘law
    10
    and order’ situation, but the orders do not indicate any
    existing law and order issue, or apprehension thereof.
     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. Moreover, he has contended that there was no
    application of mind before passing those orders.
     While submitting that it could be assumed that there was
    some material available for the purpose of passing the
    orders under Section 144, Cr.P.C., the question which then
    arises is how the State balances the rights of individuals.
     The learned senior counsel, with respect to the
    communications’ restrictions, submitted that the State had
    not indicated as to the necessity to block landline services.
    He further submitted that the communications/Internet
    restrictions which were imposed under the Indian Telegraph
    Act, 1885 [hereinafter “Telegraph Act”] needs to follow the
    provisions of Section 5 of the Telegraph Act, in line with
    Article 19 of the Constitution. While there can be some
    restrictions, there can be no blanket orders, as it would
    amount to a complete ban. Instead, a distinction should be
    drawn while imposing restrictions on social media/mass
    communication and the general internet. The least
    restrictive option must be put in place, and the State should
    have taken preventive or protective measures. Ultimately,
    the State needs to balance the safety of the people with their
    lawful exercise of their fundamental rights.
     On internet restrictions, the learned senior counsel
    submitted that such restrictions not only impact the right to
    free speech of individuals but also impinges on their right to
    trade. Therefore, a less restrictive measure, such as
    restricting only social media websites like Facebook and
    Whatsapp, should and could have been passed, as has been
    done in India while prohibiting human trafficking and child
    pornography websites. The learned senior counsel pointed
    to orders passed in Bihar, and in Jammu and Kashmir in
    2017, restricting only social media websites, and submitted
    that the same could have been followed in this case as well.
    11
     Indicating that the State can impose restrictions, the
    learned senior counsel focussed on the question of the
    “least restrictive measure” that can be passed. The learned
    senior counsel submitted that while imposing restrictions,
    the rights of individuals need to be balanced against the
    duty of the State to ensure security. The State must ensure
    that measures are in place that allows people to continue
    with their life, such as public transportation for work and
    schools, to facilitate business, etc.
    Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No.
    139141 of 2019 in W.P. (C) No. 1031 of 2019
     The learned senior counsel emphasized on the term
    “reasonable”, as used in Article 19(2) of the Constitution,
    and submitted that the restrictions on the freedom of
    speech should be reasonable as mandated under Article 19
    of the Constitution. These restrictions need to be tested on
    the anvil of the test of proportionality.
     Learned senior counsel submitted that Section 144, Cr.P.C.
    orders should be based on some objective material and not
    merely on conjectures.
    Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A.
    No. 139555 in W.P. (C) No. 1031 of 2019
     Learned senior counsel attempted to highlight that the issue
    of balancing the measures necessary for ensuring national
    security or curbing terrorism, with the rights of the citizens,
    is an endeavour that is not unique, and has been
    undertaken by Courts in various jurisdictions. Learned
    senior counsel relied on the judgment of the Supreme Court
    of Israel concerning the Legality of the General Security
    Service’s Interrogation Methods in Public Committee
    Against Torture in Israel v. Israel, 38 I.L.M. 1471
    (1999) relating to the question of whether torture during
    interrogation of an alleged terrorist was permissible. In that
    12
    case, the Israeli Supreme Court held that such acts were
    unconstitutional, and could not be justified in light of the
    freedoms and liberties afforded to the citizens of Israel.
     Learned senior counsel drew parallels between the situation
    faced by the Israeli Supreme Court in the abovementioned
    case, and that before this Court, wherein, according to the
    learned senior counsel, the State is attempting to justify the
    restrictions due to the circumstances prevailing in the State
    of Jammu and Kashmir. The learned senior counsel
    submitted that such a justification merits rejection as it
    would amount to granting too much power to the State to
    impose broad restrictions on fundamental rights in varied
    situations. It would amount to individual liberty being
    subsumed by social control.
     The learned senior counsel emphasized on the seriousness
    of the present matter, stating that such restrictions on the
    fundamental rights is the reason for the placement of Article
    32 of the Constitution in Part III, as a fundamental right
    which allows for the enforcement of the other fundamental
    rights. He referred to the Constituent Assembly debates to
    highlight the import of Article 32, as contemplated by the
    Members of the Constituent Assembly.
     The learned senior counsel also placed before this Court the
    Government of India National Telecom Policy, 2012, and
    submitted that the wide restrictions imposed by the State
    are in contravention of the aforementioned policy. He
    submitted that the freedom of speech and expression is
    meant to allow people to discuss the burning topic of the
    day, including the abrogation of Article 370 of the
    Constitution.
     Lastly, the learned senior counsel emphasized that the
    restrictions that were imposed are meant to be temporary in
    nature, have lasted for more than 100 days, which fact
    should be taken into account by this Court while deciding
    the matter.
    Ms. Meenakshi Arora, Senior Counsel for the Intervenor in
    I.A. No. 140276 in W.P. (C) No. 1031 of 2019
    13
     Learned senior counsel submitted that Articles 19 and 21 of
    the Constitution require that any action of the State must
    demonstrate five essential features: (a) backing of a ‘law’, (b)
    legitimacy of purpose, (c) rational connection of the act and
    object, (d) necessity of the action, and (e) when the above
    four are established, then the test of proportionality.
     At the outset, learned senior counsel submitted that it is
    necessary to test the validity of the orders by reference to
    the facts and circumstances prevailing on the date of
    passing of the said orders, i.e., 04.08.2019.
     Learned senior counsel submitted that the orders that have
    not been published cannot be accorded the force of law. The
    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 learned senior counsel further submitted that,
    notwithstanding the expediency of the situation, the
    necessity of a measure must be shown by the State. The
    people have a right to speak their view, whether good, bad
    or ugly, and the State must prove that it was necessary to
    restrict the same.
     On the point of proportionality, the learned senior counsel
    submitted that the test of proportionality was upheld by this
    Court in the case of K. S. Puttaswamy v. Union of India,
    (2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy9J.)”) and therefore the proportionality of a measure must
    be determined while looking at the restrictions being
    imposed by the State on the fundamental rights of citizens.
    The learned senior counsel pointed out that it is not just the
    legal and physical restrictions that must be looked at, but
    also the fear that these sorts of restrictions engender in the
    minds of the populace, while looking at the proportionality
    of measures.
    Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.
    (Crl.) No. 225 of 2019
    14
     Although this Writ Petition was withdrawn during
    arguments, the learned senior counsel wished to make
    certain submissions regarding the issue at hand. The
    learned senior counsel submitted on behalf of the Petitioner
    that although he and his family were law abiding citizens,
    yet they are suffering the effects of the restrictions. Citing
    the House of Lords judgment of Liversidge v. Anderson,
    (1941) 3 All ER 338 the learned senior counsel submitted
    that it was the dissent by Lord Atkin, upholding the
    fundamental rights of the citizens of the United Kingdom,
    which is now the law of the land.
    Mr. K. K. Venugopal, Learned Attorney General for the Union
    of India
     The learned Attorney General supported the submissions
    made by the Solicitor General. He submitted that the
    background of terrorism in the State of Jammu and
    Kashmir needs to be taken into account. Relying on
    National Investigation Agency v. Zahoor Ahmad Shah
    Watali, 2019 (5) SCC 1, the learned Attorney General
    submitted that this Court while deciding the aforementioned
    case, has taken cognizance of the problem of terrorism in
    the State before.
     According to the learned Attorney General, keeping in mind
    the facts regarding cross border terrorism and internal
    militancy, it would have been foolish to have not taken any
    preventive measures in the circumstances. The necessity of
    the orders under Section 144, Cr.P.C. are apparent from the
    background facts and circumstances, when there can be
    huge violence if the Government did not take these kinds of
    measures. In fact, similar steps were taken earlier by the
    Government in 2016 when a terrorist was killed in the
    State.
    Mr. Tushar Mehta, Solicitor General for the State of Jammu
    and Kashmir
    15
     The learned Solicitor General submitted that the first and
    foremost duty of the State is to ensure security and protect
    the citizens­ their lives, limbs and property. He further
    submitted that the facts relied on by the Petitioners and the
    Intervenors were incorrect, as they did not have the correct
    information about the factual position on the ground in the
    State of Jammu and Kashmir.
     The learned Solicitor General submitted that the historical
    background of the State of Jammu and Kashmir is
    necessary to be looked at to understand the measures taken
    by the State. The State has been a victim of both physical
    and digital cross border terrorism.
     The abrogation of Article 370 of the Constitution on
    05.08.2019 was a historic step, which resulted not in the
    taking away of the rights of the citizens of Jammu and
    Kashmir, but conferment of rights upon them which they
    never had. Now, with the abrogation, 106 people friendly
    laws have become applicable to the State of Jammu and
    Kashmir.
     The learned Solicitor General submitted that the Petitioners
    were incorrect to state that public movement was restricted.
    In fact, individual movement had never been restricted.
    Additionally, while schools were closed initially, they have
    now been reopened. Depending on the facts, circumstances
    and requirements of an area, restrictions were put in place
    which are now being relaxed gradually.
     On the orders passed by the Magistrates under Section 144,
    Cr.P.C., in their respective jurisdictional areas, the learned
    Solicitor General submitted that they were best placed to
    know the situation on the ground, and then took their
    respective decisions accordingly. Currently, there is nearly
    hundred percent relaxation of restrictions. Restrictions were
    being relaxed on the basis of the threat perception.
    Restrictions were never imposed in the Ladakh region. This
    fact shows that there was application of mind while passing
    the orders by the officers on the ground, and that there was
    no general clampdown, as is being suggested by the
    Petitioners.
     Further, the learned Solicitor General pointed to various
    figures to indicate that people were leading their ordinary
    lives in the State. He submitted that all newspapers,
    16
    television and radio channels are functioning, including
    from Srinagar, where the Petitioner in W.P. (C) No. 1031 of
    2019 is situated. The learned Solicitor General further
    indicated that the Government had taken certain measures
    to ensure that essential facilities would be available to the
    populace.
     The learned Solicitor General submitted that orders passed
    under Section 144, Cr.P.C. can be preventive in nature, in
    order to prevent danger to public safety. The Magistrate can
    pass the order even on the basis of personal knowledge, and
    the same is supposed to be a speedy mechanism. The
    orders passed must be considered keeping in mind the
    history and the background of the State.
     Relying on Babulal Parate v. State of Bombay, AIR 1960
    SC 51, and Madhu Limaye v. Sub­Divisional Magistrate,
    Monghgyr, (1970) 3 SCC 746, the learned Solicitor General
    submitted that the situation in the State of Jammu and
    Kashmir was such that the orders could be justified in view
    of maintenance of the “security of the State”. Regarding the
    Petitioners’ submission that the restrictions could have
    been imposed on specific individuals, the learned Solicitor
    General submitted that it was impossible to segregate, and
    control, the troublemakers from the ordinary citizens.
     The learned Solicitor General submitted that there were
    enough facts in the knowledge of the Magistrate to pass the
    orders under Section 144, Cr.P.C. There was sufficient
    speculation on the ground to suggest that there might be a
    move to abrogate Article 370 of the Constitution, and they
    were aware of the situation on the ground. Provocative
    speeches and messages were being transmitted. This
    information is all available in the public domain.
     It was further submitted that the Court does not sit in
    appeal of the decision to impose restrictions under Section
    144, Cr.P.C. and has limited jurisdiction to interfere,
    particularly when there are no allegations of mala fide made
    against the officers and when the question involved is of
    national security. The level of restriction required is best left
    to the officers who are on the ground with the requisite
    information and knowledge, and the same is not to be
    replaced by the opinion of the Courts.
    17
     With respect to the communications and internet shutdown,
    the learned Solicitor General submitted that internet was
    never restricted in the Jammu and Ladakh regions. Further,
    he submitted that social media, which allowed people to
    send messages and communicate with a number of people
    at the same time, could be used as a means to incite
    violence. The purpose of the limited and restricted use of
    internet is to ensure that the situation on the ground would
    not be aggravated by targeted messages from outside the
    country. Further, the internet allows for the transmission of
    false news or fake images, which are then used to spread
    violence. The dark web allows individuals to purchase
    weapons and illegal substances easily.
     The learned Solicitor General submitted that the
    jurisprudence on free speech relating to newspapers cannot
    be applied to the internet, as both the media are different.
    While newspapers only allowed one­way communication,
    the internet makes two­way communication by which
    spreading of messages are very easy. The different context
    should be kept in mind by the Court while dealing with the
    restrictions with respect to the two media.
     While referring to various photographs, tweets and
    messages of political leaders of Kashmir, he stated that
    these statements are highly misleading, abrasive and
    detrimental to the integrity and sovereignty of India.
     Further, it is not possible to ban only certain websites/parts
    of the Internet while allowing access to other parts. Such a
    measure was earlier attempted in 2017, but it was not
    successful.
     Lastly, the learned Solicitor General submitted that the
    orders passed under the Suspension Rules were passed in
    compliance with the procedure in the Suspension Rules,
    and are being reviewed strictly in terms of the same.
  9. Some of the intervenors have supported the submissions made
    by the learned Attorney General and the Solicitor General, and
    indicated that the restrictions were necessary and in compliance
    with the law. They have also submitted that normalcy is
    18
    returning in the State of Jammu and Kashmir, and that the
    present petitions are not maintainable.
    C. ISSUES
  10. In line with aforesaid facts and arguments, the following
    questions of law arise for our consideration:
    I. Whether the Government can claim exemption from
    producing all the orders passed under Section 144, Cr.P.C.
    and other orders under the Suspension Rules?
    II. Whether the freedom of speech and expression and
    freedom to practise any profession, or to carry on any
    occupation, trade or business over the Internet is a part of
    the fundamental rights under Part III of the Constitution?
    III. Whether the Government’s action of prohibiting internet
    access is valid?
    IV. Whether the imposition of restrictions under Section 144,
    Cr.P.C. were valid?
    V. Whether the freedom of press of the Petitioner in W.P. (C)
    No. 1031 of 2019 was violated due to the restrictions?
    D. PRODUCTION OF ORDERS
  11. The present petitions, their context and conduct of the parties,
    have placed this Court in a peculiar situation. We have been
    19
    asked to go into the question of the validity of orders, restricting
    movement and communication, passed in the State of Jammu
    and Kashmir by various authorities, however, the orders are not
    before us. The Petitioners and Intervenors claim that the orders
    were not available, which is why they could not place them on
    record.
  12. At the same time, while the non­availability of orders was not
    denied by the Respondent­State, they did not produce the said
    orders. In fact, when this Court by order dated 16.10.2019 asked
    them to produce the orders, the Respondent­State placed on
    record only sample orders, citing difficulty in producing the
    numerous orders which were being withdrawn and modified on a
    day­to­day basis. The Respondent­State also claimed that the
    plea to produce orders by the Petitioners was an expansion of the
    scope of the present petitions.
  13. At the outset, a perusal of the prayers in the Writ Petitions before
    us should be sufficient to reject the aforementioned contention of
    the Respondent­State. In W.P. (C) No. 1164 of 2019 and I.A no.
    157139 in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 of 2019,
    a prayer has been made to issue a writ of mandamus or any
    other writ directing Respondent Nos. 1 and 2 to produce all
    20
    orders by which movement of all persons has been restricted
    since 04.08.2019. Further, production of all orders by way of
    which communication has been blocked in State of Jammu and
    Kashmir has also been sought.
  14. On the obligation of the State to disclose information, particularly
    in a writ proceeding, this Court in Ram Jethmalani v. Union of
    India, (2011) 8 SCC 1, observed as follows:
    “75. In order that the right guaranteed by
    clause (1) of Article 32 be meaningful, and
    particularly because such petitions seek the
    protection of fundamental rights, it is
    imperative that in such proceedings the
    petitioners are not denied the information
    necessary for them to properly articulate
    the case and be heard, especially where
    such information is in the possession of the
    State.”
    (emphasis supplied)
  15. We may note that there are two separate types of reasoning that
    mandates us to order production of the orders passed by the
    authorities in this case. First, Article 19 of the Constitution has
    been interpreted to mandate right to information as an important
    facet of the right to freedom of speech and expression. A
    21
    democracy, which is sworn to transparency and accountability,
    necessarily mandates the production of orders as it is the right of
    an individual to know. Moreover, fundamental rights itself
    connote a qualitative requirement wherein the State has to act in
    a responsible manner to uphold Part III of the Constitution and
    not to take away these rights in an implied fashion or in casual
    and cavalier manner.
  16. Second, there is no dispute that democracy entails free flow of
    information. There is not only a normative expectation under the
    Constitution, but also a requirement under natural law, that no
    law should be passed in a clandestine manner. As Lon L. Fuller
    suggests in his celebrated article “there can be no greater legal
    monstrosity than a secret statute”.1
    In this regard, Jeremy
    Bentham spoke about open justice as the “keenest spur to
    exertion”. In the same context, James Madison stated “a popular
    government, without popular information, or the means of
    acquiring it, is but a prologue to a farce or a tragedy; or perhaps
    both. Knowledge will forever govern the ignorance and a people
    1Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law
    Review, 71(4), 630, 651 [February, 1958].
    22
    who mean to be their own Governors must arm themselves with
    the power which knowledge gives”.
  17. As a general principle, on a challenge being made regarding the
    curtailment of fundamental rights as a result of any order passed
    or action taken by the State which is not easily available, the
    State should take a proactive approach in ensuring that all the
    relevant orders are placed before the Court, unless there is some
    specific ground of privilege or countervailing public interest to be
    balanced, which must be specifically claimed by the State on
    affidavit. In such cases, the Court could determine whether, in
    the facts and circumstances, the privilege or public interest claim
    of the State overrides the interests of the Petitioner. Such portion
    of the order can be redacted or such material can be claimed as
    privileged, if the State justifies such redaction on the grounds, as
    allowed under the law.
  18. In the present case, while the State initially claimed privilege, it
    subsequently dropped the claim and produced certain sample
    orders, citing difficulty in producing all the orders before this
    Court. In our opinion, this is not a valid ground to refuse
    production of orders before the Court.
    23
    E. FUNDAMENTAL RIGHTS UNDER PART III AND RESTRICTIONS
    THEREOF
  19. The petitioners have contended that the impugned restrictions
    have affected the freedom of movement, freedom of speech and
    expression and right to free trade and avocation. In this context,
    we have to first examine the nature of the fundamental rights
    provided under the Constitution.
  20. The nature of fundamental rights under Part III of the
    Constitution is well settled. The fundamental rights are
    prescribed as a negative list, so that “no person could be denied
    such right until the Constitution itself prescribes such
    limitations”. The only exception to the aforesaid formulation is
    Article 21A of the Constitution, which is a positive right that
    requires an active effort by the concerned government to ensure
    that the right to education is provided to all children up to the
    age of 16 years.
  21. The positive prescription of freedom of expression will result in
    different consequences which our own Constitution has not
    entered into. Having different social and economic backgrounds
    and existing on a different scale of development, the human
    24
    rights enshrined therein have taken a different role and purpose.
    The framers of the Indian Constitution were aware of the
    situation of India, including the socio­economic costs of such
    proactive duty, and thereafter took an informed decision to
    restrict the application of fundamental rights in a negative
    manner. This crucial formulation is required to be respected by
    this Court, which has to uphold the constitutional morality
    behind utilization of such negative prescriptions.
  22. Now, we need to concern ourselves about the freedom of
    expression over the medium of internet. There is no gainsaying
    that in today’s world the internet stands as the most utilized and
    accessible medium for exchange of information. The revolution
    within the cyberspace has been phenomenal in the past decade,
    wherein the limitation of storage space and accessibility of print
    medium has been remedied by the usage of internet.
  23. At this point it is important to note the argument of Mr. Vinton
    G. Cerf, one of the ‘fathers of the internet’. He argued that while
    the internet is very important, however, it cannot be elevated to
    the status of a human right.2
    Technology, in his view, is an
    enabler of rights and not a right in and of itself. He distinguishes
    2 Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04,
    2012).
    25
    between placing technology among the exalted category of other
    human rights, such as the freedom of conscience, equality etc.
    With great respect to his opinion, the prevalence and extent of
    internet proliferation cannot be undermined in one’s life.
  24. Law and technology seldom mix like oil and water. There is a
    consistent criticism that the development of technology is not met
    by equivalent movement in the law. In this context, we need to
    note that the law should imbibe the technological development
    and accordingly mould its rules so as to cater to the needs of
    society. Non recognition of technology within the sphere of law is
    only a disservice to the inevitable. In this light, the importance of
    internet cannot be underestimated, as from morning to night we
    are encapsulated within the cyberspace and our most basic
    activities are enabled by the use of internet.
  25. We need to distinguish between the internet as a tool and the
    freedom of expression through the internet. There is no dispute
    that freedom of speech and expression includes the right to
    disseminate information to as wide a section of the population as
    is possible. The wider range of circulation of information or its
    greater impact cannot restrict the content of the right nor can it
    26
    justify its denial. [refer to Secretary, Ministry of Information &
    Broadcasting Government of India v. Cricket Association of
    Bengal, (1995) 2 SCC 161; Shreya Singhal v. Union of India,
    (2015) 5 SCC 1].
  26. The development of the jurisprudence in protecting the medium
    for expression can be traced to the case of Indian Express v.
    Union of India, (1985) 1 SCC 641, wherein this Court had
    declared that the freedom of print medium is covered under the
    freedom of speech and expression. In Odyssey Communications
    Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was
    held that the right of citizens to exhibit films on Doordarshan,
    subject to the terms and conditions to be imposed by the
    Doordarshan, is a part of the fundamental right of freedom of
    expression guaranteed under Article 19(1)(a), which can be
    curtailed only under circumstances set out under Article 19(2).
    Further, this Court expanded this protection to the use of
    airwaves in the case of Secretary, Ministry of Information &
    Broadcasting, Government of India (supra). In this context, we
    may note that this Court, in a catena of judgments, has
    27
    recognized free speech as a fundamental right, and, as
    technology has evolved, has recognized the freedom of speech
    and expression over different media of expression. Expression
    through the internet has gained contemporary relevance and is
    one of the major means of information diffusion. Therefore, the
    freedom of speech and expression through the medium of
    internet is an integral part of Article 19(1)(a) and accordingly, any
    restriction on the same must be in accordance with Article 19(2)
    of the Constitution.
  27. In this context, we need to note that the internet is also a very
    important tool for trade and commerce. The globalization of the
    Indian economy and the rapid advances in information and
    technology have opened up vast business avenues and
    transformed India as a global IT hub. There is no doubt that
    there are certain trades which are completely dependent on the
    internet. Such a right of trade through internet also fosters
    consumerism and availability of choice. Therefore, the freedom of
    trade and commerce through the medium of the internet is also
    constitutionally protected under Article 19(1)(g), subject to the
    restrictions provided under Article 19(6).
    28
  28. None of the counsels have argued for declaring the right to access
    the internet as a fundamental right and therefore we are not
    expressing any view on the same. We are confining ourselves to
    declaring that the right to freedom of speech and expression
    under Article 19(1)(a), and the right to carry on any trade or
    business under 19(1)(g), using the medium of internet is
    constitutionally protected.
  29. Having explained the nature of fundamental rights and the utility
    of internet under Article 19 of the Constitution, we need to
    concern ourselves with respect to limitations provided under the
    Constitution on these rights. With respect to the freedom of
    speech and expression, restrictions are provided under Article
    19(2) of the Constitution, which reads as under:
    “(2) Nothing in sub clause (a) of clause (1) shall
    affect the operation of any existing law, or
    prevent the State from making any law, in so
    far as such law imposes reasonable
    restrictions on the exercise of the right
    conferred by the said sub­clause in the
    interests of the sovereignty and integrity of
    India, the security of the State, friendly
    relations with foreign States, public order,
    decency or morality or in relation to contempt
    of court, defamation or incitement to an
    offence.”
    29
  30. The right provided under Article 19(1) has certain exceptions,
    which empowers the State to impose reasonable restrictions in
    appropriate cases. The ingredients of Article 19(2) of the
    Constitution are that:
    a. The action must be sanctioned by law;
    b. The proposed action must be a reasonable restriction;
    c. Such restriction must be in furtherance of interests of
    the sovereignty and integrity of India, the security of
    the State, friendly relations with foreign States, public
    order, decency or morality or in relation to contempt of
    court, defamation or incitement to an offence.
  31. At the outset, the imposition of restriction is qualified by the term
    ‘reasonable’ and is limited to situations such as interests of the
    sovereignty, integrity, security, friendly relations with the foreign
    States, public order, decency or morality or contempt of Court,
    defamation or incitement to an offence. Reasonability of a
    restriction is used in a qualitative, quantitative and relative
    sense.
  32. It has been argued by the counsel for the Petitioners that the
    restrictions under Article 19 of the Constitution cannot mean
    30
    complete prohibition. In this context we may note that the
    aforesaid contention cannot be sustained in light of a number of
    judgments of this Court wherein the restriction has also been
    held to include complete prohibition in appropriate
    cases. [Madhya Bharat Cotton Association Ltd. v. Union of
    India, AIR 1954 SC 634, Narendra Kumar v. Union of India,
    (1960) 2 SCR 375, State of Maharashtra v. Himmatbhai
    Narbheram Rao, (1969) 2 SCR 392, Sushila Saw Mill v. State
    of Orissa, (1995) 5 SCC 615, Pratap Pharma (Pvt.) Ltd. v.
    Union of India, (1997) 5 SCC 87 and Dharam Dutt v. Union of
    India, (2004) 1 SCC 712]
  33. The study of aforesaid case law points to three propositions
    which emerge with respect to Article 19(2) of the Constitution. (i)
    Restriction on free speech and expression may include cases of
    prohibition. (ii) There should not be excessive burden on free
    speech even if a complete prohibition is imposed, and the
    government has to justify imposition of such prohibition and
    explain as to why lesser alternatives would be inadequate. (iii)
    Whether a restriction amounts to a complete prohibition is a
    question of fact, which is required to be determined by the Court
    31
    with regard to the facts and circumstances of each case. [refer to
    State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,
    (2005) 8 SCC 534].
  34. The second prong of the test, wherein this Court is required to
    find whether the imposed restriction/prohibition was least
    intrusive, brings us to the question of balancing and
    proportionality. These concepts are not a new formulation under
    the Constitution. In various parts of the Constitution, this Court
    has taken a balancing approach to harmonize two competing
    rights. In the case of Minerva Mills Ltd. v. Union of India,
    (1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company
    v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147, this Court
    has already applied the balancing approach with respect to
    fundamental rights and the directive principles of State Policy.
  35. Before, we delve into the nuances of ‘restriction’ as occurring
    under Article 19(2) of the Constitution, we need to observe
    certain facts and circumstances in this case. There is no doubt
    that Jammu and Kashmir has been a hot bed of terrorist
    insurgencies for many years. In this light, we may note the
    State’s submission that since 1990 to 2019 there have been
    32
    71,038 recorded incidents of terrorist violence, 14,038 civilians
    have died, 5292 security personnel were martyred, 22,536
    terrorists were killed. The geopolitical struggle cannot be played
    down or ignored. In line with the aforesaid requirement, we may
    note that even the broadest guarantee of free speech would not
    protect the entire gamut of speech. The question which begs to be
    answered is whether there exists a clear and present danger in
    restricting such expression.
  36. Modern terrorism heavily relies on the internet. Operations on
    the internet do not require substantial expenditure and are not
    traceable easily. The internet is being used to support fallacious
    proxy wars by raising money, recruiting and spreading
    propaganda/ideologies. The prevalence of the internet provides
    an easy inroad to young impressionable minds. In this regard,
    Gregory S. McNeal,
    3
    Professor of Law and Public Policy,
    Pepperdine University, states in his article about propaganda and
    the use of internet in the following manner:
    “Terrorist organisations have also begun to
    employ websites as a form of information
    warfare. Their websites can disperse
    inaccurate information that has far­reaching
    3 Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l
    L. 789 (2007).
    33
    consequences. Because internet postings are
    not regulated sources of news, they can reflect
    any viewpoint, truthful or not. Thus, readers
    tend to consider internet items to be fact, and
    stories can go unchecked for some time.
    Furthermore, streaming video and pictures of
    frightening scenes can support and magnify
    these news stories. As a result, the internet is
    a powerful and effective tool for spreading
    propaganda.”
  37. Susan W. Brenner,
    4
    NCR Distinguished Professor of Law and
    Technology, University of Dayton School of Law, also notes that
    the traditional approach has not worked satisfactorily on
    terrorism due to the proliferation of the internet. It is the
    contention of the respondents that the restriction on the freedom
    of speech was imposed due to the fact that there were national
    security issues over and above a law and order situation, wherein
    there were problems of infiltration and support from the other
    side of the border to instigate violence and terrorism. The learned
    Solicitor General pointed out that the ‘war on terrorism’ requires
    imposition of such restriction so as to nip the problem of
    terrorism in the bud. He submitted that in earlier times,
    sovereignty and integrity of a State was challenged only on
    occurrence of war. In some cases, there have been instances
    4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing
    with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005).
    34
    where the integrity of the State has been challenged by
    secessionists. However, the traditional conceptions of warfare
    have undergone an immense change and now it has been
    replaced by a new term called ‘war on terror’. This war, unlike the
    earlier ones, is not limited to territorial fights, rather, it
    transgresses into other forms affecting normal life. The fight
    against terror cannot be equated to a law and order situation as
    well. In this light, we observe that this confusion of
    characterising terrorism as a war stricto sensu or a normal law
    and order situation has plagued the submission of the
    respondent Government and we need to carefully consider such
    submissions.
  38. Before analysing the restrictions imposed on the freedom of
    speech and expression in the Indian context, we need to have a
    broad analysis of the state of affairs in the United States of
    America (hereinafter ‘US’) where freedom of expression under the
    First Amendment is treated to be very significant with the US
    being perceived to be one of the liberal constituencies with
    respect to free speech jurisprudence. However, we need to refer to
    the context and state of law in the US, before we can understand
    such an assertion.
    35
  39. During the US civil war, a dramatic confrontation over free
    speech arose with respect to the speech of Clement L.
    Vallandigham, who gave a speech calling the civil war ‘wicked,
    cruel and unnecessary’. He urged the citizens to use ballot boxes
    to hurl ‘President Lincoln’ from his throne. As a reaction, Union
    soldiers arrested Mr. Vallandigham and he had to face a fivemember military commission which charged him with ‘declaring
    disloyal sentiments and opinions with the object and purpose of
    weakening the power of the government in its efforts to suppress
    an unlawful rebellion’. [Ex parte Vallandigham, 28 F. Cas. 874
    (1863)] The commission found Mr. Vallandigham guilty and
    imposed imprisonment during the war. The aforesaid
    imprisonment was met with demonstrations and publications
    calling such imprisonment as a crime against the US
    Constitution. President Lincoln, having regard to the US
    Constitution, commuted the imprisonment and converted the
    same to banishment. He justified the aforesaid act by stating that
    banishment was more humane and a less disagreeable means of
    securing least restrictive measures.
    36
  40. During World War I, many within the US had strong feelings
    against the war and the draft imposed by the administration of
    President Woodrow Wilson. During this period, the US enacted
    the Espionage Act, 1917 which penalised any person who wilfully
    caused or attempted to cause insubordination, disloyalty, mutiny
    by refusal from duty or naval services. In any case, in Abraham
    v. United States, 250 U.S. 616 (1919), Justice Holmes even in
    his dissent observed as under:
    “I do not doubt for a moment that, by the same
    reasoning that would justify punishing
    persuasion to murder, the United States
    constitutionally may punish speech that
    produces or is intended to produce a clear and
    imminent danger that it will bring about
    forthwith certain substantive evils that the
    United States constitutionally may seek to
    prevent. The power undoubtedly is greater
    in time of war than in time of peace,
    because war opens dangers that do not exist
    at other times.”
    (emphasis supplied)
  41. The Second World War was also riddled with instances of tussle
    between the First Amendment and national security issues. An
    instance of the same was the conviction of William Dudley Pelley,
    37
    under the Espionage Act, 1917, which the Supreme Court of
    United States refused to review.
  42. During the Cold War, the attention of the American Congress was
    on the increase of communism. In 1954, Congress even enacted
    the Communist Control Act, which stripped the Communist party
    of all rights, privileges and immunities. During this time, Dennis
    v. United States, 341 US 494 (1951), is an important precedent.
    Sections 2(a)(1), 2(a)(3) and 3 of the Alien Registration Act, 1940
    made it unlawful for any person to knowingly or wilfully advocate
    with the intent of the overthrowing or destroying the Government
    of the United States by force or violence, to organize or help to
    organize any group which does so, or to conspire to do so. The
    Petitioner in the aforementioned case challenged the aforesaid
    provision on the ground that these provisions violated the First
    Amendment. The US Supreme Court held:
    “An analysis of the leading cases in this Court
    which have involved direct limitations on
    speech, however, will demonstrate that both
    the majority of the Court and the dissenters in
    particular cases have recognized that this is
    not an unlimited, unqualified right, but that
    the societal value of speech must, on occasion,
    be subordinated to other values and
    considerations.”
    38
  43. During the Vietnam war, the US Supreme Court had to deal with
    the case of Brandenburg v. Ohio, 395 US 444 (1969), wherein
    the Court over­ruled Dennis (supra) and held that the State
    cannot punish advocacy of unlawful conduct, unless it is
    intended to incite and is likely to incite ‘imminent lawless action’.
  44. There is no doubt that the events of September 2011 brought
    new challenges to the US in the name of ‘war on terror’. In this
    context, Attorney General John Ashcroft stated that “To those…
    who scare peace­loving people with phantoms of lost liberty, my
    message is this: Your tactics only aid terrorists, for they erode our
    national unity and diminish our resolve. They give ammunition to
    America’s enemies…’.5
    However, Bruce Ackerman, in his article,6
    states that:
    “The “war on terrorism” has paid enormous
    political dividends …. but that does not make
    it a compelling legal concept. War is
    traditionally defined as a state of belligerency
    between sovereigns …. The selective adaptation
    of doctrines dealing with war predictably leads
    to sweeping incursions on fundamental
    liberties.”
    5 Senate Judiciary Committee Hearing on Anti­Terrorism Policy, 106th Cong. (Dec. 6, 2001)
    (testimony of Attorney General John Ashcroft)
    6 Ackerman, Bruce, “The Emergency Constitution”, Faculty Scholarship Series, 113 (2004).
    39
  45. From the aforesaid study of the precedents and facts, we may
    note that the law in the US has undergone lot of changes
    concerning dissent during war. The position that emerges is that
    any speech which incites imminent violence does not enjoy
    constitutional protection.
  46. It goes without saying that the Government is entitled to restrict
    the freedom of speech and expression guaranteed under Article
    19(1)(a) if the need be so, in compliance with the requirements
    under Article 19(2). It is in this context, while the nation is facing
    such adversity, an abrasive statement with imminent threat may
    be restricted, if the same impinges upon sovereignty and integrity
    of India. The question is one of extent rather than the existence
    of the power to restrict.
  47. The requirement of balancing various considerations brings us to
    the principle of proportionality. In the case of K. S. Puttaswamy
    (Privacy­9J.) (supra), this Court observed:
    “310…Proportionality is an essential facet of
    the guarantee against arbitrary State action
    because it ensures that the nature and quality
    of the encroachment on the right is not
    disproportionate to the purpose of the law…”
    40
  48. Further, in the case of CPIO v Subhash Chandra Aggarwal,
    (2019) SCC OnLine SC 1459, the meaning of proportionality was
    explained as:
    “225…It is also crucial for the standard of
    proportionality to be applied to ensure that
    neither right is restricted to a greater extent
    than necessary to fulfil the legitimate interest
    of the countervailing interest in question…”
  49. At the same time, we need to note that when it comes to
    balancing national security with liberty, we need to be cautious.
    In the words of Lucia Zedner7
    :
    “Typically, conflicting interests are said to be
    ‘balanced’ as if there were a self­evident
    weighting of or priority among them. Yet rarely
    are the particular interests spelt out, priorities
    made explicitly, or the process by which a
    weight is achieved made clear. Balancing is
    presented as a zero­sum game in which more
    of one necessarily means less of the other …
    Although beloved of constitutional lawyers and
    political theorists, the experience of criminal
    justice is that balancing is a politically
    dangerous metaphor unless careful regard is
    given to what is at stake.”
  50. The proportionality principle, can be easily summarized by Lord
    Diplock’s aphorism ‘you must not use a steam hammer to crack a
    nut, if a nutcracker would do?’ [refer to R v. Goldsmith, [1983] 1
    7Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice,
    (2005) 32 Journal of Law and Society 510.
    41
    WLR 151, 155 (Diplock J)]. In other words, proportionality is all
    about means and ends.
  51. The suitability of proportionality analysis under Part III, needs to
    be observed herein. The nature of fundamental rights has been
    extensively commented upon. One view is that the fundamental
    rights apply as ‘rules’, wherein they apply in an ‘all­or­nothing
    fashion’. This view is furthered by Ronald Dworkin, who argued
    in his theory that concept of a right implies its ability to trump
    over a public good.8
    Dworkin’s view necessarily means that the
    rights themselves are the end, which cannot be derogated as they
    represent the highest norm under the Constitution. This would
    imply that if the legislature or executive act in a particular
    manner, in derogation of the right, with an object of achieving
    public good, they shall be prohibited from doing so if the
    aforesaid action requires restriction of a right. However, while
    such an approach is often taken by American Courts, the same
    may not be completely suitable in the Indian context, having
    regard to the structure of Part III which comes with inbuilt
    restrictions.
    8Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights (1984)
    153 (hereinafter Dworkin, “Rights as is trumps”).
    42
  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 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
  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 rights is not arbitrary or
    excessive, so as to affect public interest. This Court, while sitting
    9R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).
    10Ibid at page 47.
    11Ibid, page 50.
    12Ibid, page 66.
    43
    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:
    “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 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.”
    (emphasis supplied)
    This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,
    while laying down the test of reasonableness, held that:
  54. … 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
    44
    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….
    (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:
    “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 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.”
    (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:
    45
  55. By “proportionality”, we mean the
    question whether, while regulating exercise
    of fundamental rights, the appropriate or
    least­restrictive 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 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 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
    337; Bishambhar Dayal Chandra Mohan v. State of Uttar
    Pradesh, (1982) 1 SCC 39]
  56. 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 be absolute in a
    realm where rights are interconnected to each other, and limiting
    46
    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 inherent tension between
    democracy’s two fundamental elements…”
    (emphasis supplied)
    47
  57. In the aforesaid case, this Court was posed with a dilemma as to
    how to treat competing rights. The Court attempted to resolve 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
    is one of the expressions of the multi­faceted
    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
    48
    in mind the relative social values of each
    competitive aspects when considered in
    proper context.”
    (emphasis supplied)
  58. 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 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 right­holder (balancing stage). One important
    13Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford University Press,
    2012).
    49
    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
  59. 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 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):
    14Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation,
    Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).
    50
    “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 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
    depending on the circumstances, in each case
    courts will be 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” 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)
  60. As can be seen, there exists substantial difference in both
    approaches, as the Oakes test, instead of requiring “any”
    51
    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.
  61. 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 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;
    (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
    (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)
    15Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge
    University Press, 2012)
    52
  62. In Modern Dental College case (supra), this Court also went on
    to analyse that the principle of proportionality is inherently
    embedded in Indian Constitution under the realm of the doctrine
    of reasonable restrictions and that the same can be traced under
    Article 19. The relevant extracts are placed below:
    “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 sub­clauses 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 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
    53
    restrictions are imposed or upon abstract
    considerations (see Mohd. Hanif
    Quareshi v. State of Bihar, AIR 1958 SC 731).”
    (emphasis supplied)
  63. 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:
    “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 a
    limitation 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)
    54
  65. 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.
  66. 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.
    16Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002)

  67. 17David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L.
    Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).
    55
  68. 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 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 four­step 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;
    18 Ibid, page 61.
    19Ibid, page 61.
    56
    (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
    (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’).
  69. 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 states that “[t]he key
    purpose of the necessity enquiry is to offer an 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
    57
    scrutiny in relation to both the realisation of the objective and its
    impact upon fundamental rights.”
    20
  70. 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:
    “157. In Modern Dental College & Research
    Centre [Modern Dental College & Research
    Centre v. State of M.P., (2016) 7 SCC 353], four
    sub­components of proportionality which need
    to be satisfied were taken note of. These are:
    (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 alternative (necessity stage).
    (d) The measure must not have a
    disproportionate impact on the right­holder
    (balancing stage).
    158.This has been approved in K.S.
    Puttaswamy [K.S. 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
    20Ibid, 62
    58
    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
    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 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 suggested by Bilchitz, as this projects an
    ideal approach that need to be adopted.”
    (emphasis supplied)
  71. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar­5J.)
    (supra), made observations on the test of proportionality that
    needs to be satisfied under our Constitution for a violation of 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 (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)
    59
    “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.”
    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 measure could have been
    adopted consistent with the object of the law
    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
    60
    opinion, suggested a four­pronged test as
    follows: (SCC p. 632, para 638)
    “(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;
    (iv) There must be procedural
    guarantees against abuse of
    such interference.”
    (emphasis supplied)
  72. After applying the aforesaid doctrine in deciding the
    constitutional validity of the Aadhaar scheme, Dr. Chandrachud,
    J., in the K.S. Puttaswamy (Aadhaar­5J.) 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 rights­infringing
    measures that interfere with or limit the
    exercise of fundamental rights and
    61
    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
    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)
  73. This is the current state of the doctrine of proportionality as it
    exists in India, wherein proportionality is the key tool to achieve
    62
    judicial balance. But many scholars are not agreeable to
    recognize proportionality equivalent to that of balancing.21
  74. 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 least
    restrictive 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
    21Julian 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 Chapter 3 of this
    volume.
    63
    affected parties, the same should be supported by sufficient
    material and should be amenable to judicial review.
  75. 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.
  76. 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 restriction requires the consideration of
    appropriateness, necessity and the least restrictive measure
    before being imposed.
  77. 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
    64
    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 “anti­mask” 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.
  78. 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.
  79. The respondent­State 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.
  80. 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
    65
    India. This Court would only observe that achievement of peace
    and tranquillity within the erstwhile State of Jammu and
    Kashmir requires a multifaceted approach without excessively
    burdening the freedom of speech. In this regard the Government
    is required to consider various options under Article 19(2) of the
    Constitution, so that the brunt of exigencies is decimated in a
    manner which burdens freedom of speech in a minimalist
    manner.
  81. Having discussed the general constitutional ambit of the
    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
  82. 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.
  83. It must be noted that although substantive justice under the
    fundamental rights analysis is important, procedural justice
    cannot be sacrificed on the altar of substantive justice. There is a
    66
    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 (Privacy­9J.) case (supra).
  84. 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 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.
  85. Section 69A of the Information Technology Act, 2000 read with
    the Information Technology (Procedures and Safeguards for
    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
    67
    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 particular websites on the
    internet. Recourse cannot, therefore, be made by the Government
    to restrict the internet generally under this section.
  86. 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 Court of Gujarat, in the
    case of Gaurav Sureshbhai Vyas v. State of Gujarat, in Writ
    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 full­fledged discussion of the power of the Magistrate
    to issue such restrictions under Section 144, Cr.P.C., the Court
    observed as follows:
    68
    “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)
    A Special Leave Petition was filed against the above judgment of
    the Gujarat High Court, being SLP (C) No. 601 of 2016, which
    was dismissed by this Court in limine on 11.02.2016.
  87. The position has changed since 2017, with the passage of the
    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.
  88. The Suspension Rules lay down certain safeguards, keeping in
    mind the fact that an action under the same has a large effect on
    the 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
    69
    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:
    “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 in­charge of
    the Home Department in the case of a State
    Government (hereinafter referred to as the
    competent 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:
    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 sub­rule (1) shall contain
    70
    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
    sub­rule (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.
    (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 case may be, shall
    constitute a Review Committee.
    (i) The Review Committee to be constituted by
    the Central Government shall consist of the
    following, namely:­
    (a) Cabinet Secretary­Chairman;
    (b) Secretary to the Government of India
    In­charge, Legal Affairs­Member;
    (c) Secretary to the Government,
    Department of Telecommunications
    ­Member.
    (ii) The Review Committee to be constituted by
    the State Government shall consist of the
    following, namely:­
    71
    (a)Chief Secretary­Chairman;
    (b)Secretary Law or Legal
    Remembrancer In­Charge, Legal
    Affairs­Member;
    (c)Secretary to the State Government (other
    than the Home Secretary) ­Member.
    (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
    sub­rule (1) are in accordance with the
    provisions of sub­section (2) of section 5 of the
    said Act.”
  89. 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
    sub­rule 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
    72
    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 twenty­four hours, failing which,
    as per the second proviso, the order of suspension will cease to
    exist. The confirmation of the order by the competent authority is
    therefore essential, failing which the order passed by a duly
    authorised officer will automatically lapse by operation of law.
  90. 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 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. The
    purpose of the aforesaid rule is to integrate the proportionality
    analysis within the framework of the Rules.
    73
  91. 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
    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 Rules to suspend telecom
    services, with the authorised officer acting under the Suspension
    Rules only due to some exigent circumstances.
  92. 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
    74
    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.
  93. This last requirement, of the orders issued under the Rules being
    in accordance with Section 5(2), Telegraph Act, is very relevant to
    understand the circumstances in which the suspension orders
    may be 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
    (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:
    75
    Provided that the press messages
    intended to be published in India of
    correspondents accredited to the Central
    Government or a State Government shall not
    be intercepted or detained, unless their
    transmission has been prohibited under this
    sub­section.”
  94. 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 Four­Judge Bench of this
    Court interpreted 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 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 pre­requisite for the
    exercise of power under this section, 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 sub­section (1)
    the phrase ‘occurrence of any public
    76
    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 sub­section
    (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)
  95. 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 phone­tapping 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 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
    77
    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, (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.”
  96. Keeping in mind the wordings of the section, and the above two
    pronouncements of this Court, what emerges is that the prerequisite for an order to be passed under this sub­section, 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 sub­section pertaining to “sovereignty and integrity of India,
    the security of the State, friendly relations with foreign states or
    78
    public order or for preventing incitement to the commission of an
    offence”.
  97. The word ‘emergency’ has various connotations. Everyday
    emergency, needs to be distinguished from the type of emergency
    wherein events which involve, or might involve, 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 that the ‘public emergency’ is
    required to be of serious nature, and needs to be determined on a
    case to case basis.
  98. 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
    79
    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.
  99. 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
    80
    the press is also to be restricted. However, the aforesaid
    interpretation could not be supported by the petitioner with any
    judgments of this Court.
  100. 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]
  101. 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
    81
    person has the constitutional right to challenge the orders made
    under the Suspension Rules, before the High Court under Article
    226 of the Constitution or other appropriate forum.
  102. We also direct that all the above procedural safeguards, as
    elucidated by us, need to be mandatorily followed. In this
    context, this Court in the Hukam Chand Shyam Lal case
    (supra), observed as follows:
    “18. It is well­settled 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 amodes ( sic) of performance are
    necessarily forbidden. It is 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 broad­based restriction would have.
  103. 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
    82
    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.
  104. One of the gaps which must be highlighted relates to the usage of
    the word “temporary” in the title of the Suspension Rules.
    Despite the above, there is no indication of the maximum
    duration for which a suspension order can be in operation.
    Keeping in mind the requirements of proportionality expounded
    in the earlier section of the judgment, 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
    83
    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.
  105. Coming to the orders placed before us regarding restrictions on
    communication and Internet, there are eight orders that are
    placed 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.
  106. 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 apprised about the ground
    84
    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 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.
    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.”
  107. 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
    85
    had to be a circumstance on 04.08.2019 showing that there
    would be an action which will likely create obstruction,
    annoyance or injury to any person or will 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.
  108. 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 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.
  109. These contentions require us to examine the scope of Section
    144, Cr.P.C, which reads 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 Sub­divisional Magistrate or any
    other Executive Magistrate specially
    empowered by the State Government in this
    behalf, there is sufficient ground for proceeding
    86
    under this section and 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:
    87
    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.
    (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
    predecessor­in­office.
    (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 sub­section (4).
    (7) Where an application under sub­section (5)
    or sub­section (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
    88
    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.
  110. Section 144, Cr.P.C. is one of the mechanisms that 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 sub­chapter 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”.
  111. 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.
    89
  112. 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,
    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
    90
    weighed with the Magistrate to issue an order under Section
    144, Cr.P.C.
    (c) Communication of the Order: The Order must be served in
    the manner provided under Section 134, Cr.P.C., i.e., served
    on the person against whom it is made. If such a course of
    action is not practicable, it must be notified by proclamation
    and publication so as to convey the information to persons
    affected by the order. Only in case of an emergency or where
    the circumstances are such that notice cannot be served on
    such a person, can the order be passed ex parte.
    (d) Duration of the Order: As this power can only be exercised
    in urgent cases, the statute has incorporated temporal
    restrictions—the order cannot be in force for more than two
    months. However, the State Government can extend an order
    issued under Section 144, Cr.P.C. by a Magistrate for a
    further period up to six months if the State Government
    considers it necessary for preventing danger to human life,
    health or safety or preventing a riot.
    Although, a two­month period outer limit for the Magistrate,
    and a six­month limit for the State Government, has been
    provided under Section 144, Cr.P.C. but the concerned
    91
    Magistrate and the State Government must take all steps to
    ensure that the restrictions are imposed for a limited
    duration.
    (e) Act Judicially while Rescinding or Modification of the
    Order: The Magistrate can rescind or alter any order made by
    him on his own or on an application by any aggrieved person.
    Similarly, the State Government may also on its own motion
    rescind or alter any order passed by it, extending an order
    passed under Section 144, Cr.P.C. While considering any
    application for modification 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.
  113. 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).
    92
    Repelling the contention 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.
    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.
    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 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.
    e. Even if certain sections of people residing in the
    particular 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
    93
    unlawful activity. However, any affected person can
    always apply to the Magistrate under Section 144(4),
    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.
    g. The order of the Magistrate under Section 144, 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.
    h. If any prosecution is launched for non­compliance 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.
  114. 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
    94
    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.
  115. A Bench of seven Judges in the Madhu Limaye case (supra) was
    constituted to re­consider the law laid down in Babulal Parate
    (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:
    (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
    95
    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 key­note 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)
  116. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC
    226, this Court, in deciding a review petition, elaborated on the
    circumstances in which the power under Section 144, Cr.P.C.
    can be exercised. This Court held as under:
    96
    “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 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 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
  117. He could only direct parties to go to the
    proper forum. 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)
  118. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 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:
    “27. The entire basis of action under Section
    144 is provided by the urgency of the
    97
    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.
    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 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 wrong­doer 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.
  119. …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.”
    98
    (emphasis supplied)
  120. Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of
    Police, Calcutta, (1983) 4 SCC 522, a Bench of three Judges
    expressed doubts about the dicta in the Gulam Abbas case
    (supra) on the nature 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)
  121. 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.
  122. 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
    99
    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.”
    (emphasis supplied)
  123. In view of the language of the provision and settled law, we are
    unable to accept the aforesaid contention.
  124. 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
    100
    from contesting or participating in elections. In this context, it is
    sufficient to note that the 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.
  125. 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.
    101
  126. In this context, it is pertinent for us to emphasize the holding
    rendered by a five­Judge 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 a clause to the Defence of India Rules.”
    (emphasis supplied)
  127. 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 seven­Judge Bench in Madhu Limaye case
    102
    (supra) 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 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…. 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 key­note 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,
    103
    however, that annoyance must assume
    sufficiently grave proportions to bring the
    matter within interests of public order.”
    (emphasis supplied)
  128. 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:
    “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.
  129. It is keeping this distinction in mind, the
    legislature, under Section 144 CrPC, has
    empowered the District Magistrate, SubDivisional 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 144­A CrPC, which itself was
    introduced by Act 25 of 2005 [Ed.: The
    Code of Criminal Procedure (Amendment)
    Act, 2005.] , the District Magistrate has
    104
    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 is
    necessary for him to do so for the
    preservation of public peace, public safety
    or maintenance of public order. …”
    (emphasis supplied)
  130. In view of the above, ‘law and order’, ‘public order’ and ‘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.
  131. Learned senior counsel, Mr. Kapil Sibal also contended that an
    order under Section 144, Cr.P.C. cannot be issued against the
    105
    public generally and must 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)
  132. 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
    106
    imposed by 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 to be
    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…

  1. 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/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 cast upon the
    107
    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)
  2. As discussed above, the decisions of this Court in the Modern
    Dental College case (supra) and K.S. Puttaswamy (Aadhaar5J.) case (supra), which brought the concept of proportionality
    into the fold, equally apply to an order passed under Section 144,
    Cr.P.C.
  3. The Petitioners also contended that orders passed under Section
    144, Cr.P.C., imposing restrictions, cannot be a subject matter of
    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
    108
    that this Court cannot sit in appeal over the order passed by the
    magistrate, particularly when there is no imputation of mala fide.
  4. To put a quietus to the aforesaid issue it is pertinent to
    reproduce and rely on a 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,
    109
    interference should be the exception and
    not the rule.”
    (emphasis supplied)
  5. We may note that orders passed under Section 144, Cr.P.C. have
    direct consequences upon the fundamental rights of the public in
    general. Such a power, if used in a casual and cavalier manner,
    would result in severe illegality. This power should be used
    responsibly, only as a measure to preserve law and order. The
    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 un­notified.
    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. Sub­section (1) confers powers not on the
    executive but on certain Magistrates…Under
    sub­section (1) the Magistrate himself has
    to form an opinion that there is sufficient
    ground for proceeding under this section
    110
    and immediate prevention or speedy
    remedy is desirable. Again the sub­section
    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 sub­section further
    enumerates the particular activities with
    regard to which the Magistrate is entitled to
    place restraints.”
    (emphasis supplied)
  6. 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 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.
    111
  7. 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 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
    112
    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 course and as
    though adjudicating an appeal, will defeat the
    very purpose of legislation and legislative
    intent…”
    (emphasis supplied)
  8. 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
    113
    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.
  9. 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 are preventive/remedial. However, if the
    authority is to consider imposition of restrictions over a larger
    territorial area or for a longer duration, the threshold
    requirement is relatively higher.
  10. An order passed under Section 144, Cr.P.C. should be indicative
    of proper application of mind, which should be based on the
    114
    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.
  11. 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 the
    material placed before this Court; rather, we have presumed
    existence of the same.
  12. 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
    115
    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.
  13. 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 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 prevent
    any loss of life, limb and property. However, these orders do not
    explain the aforesaid aspects.
  14. Although the restrictions have been allegedly removed on
    27.09.2019, thereby rendering the present exercise into a
    116
    virtually academic one, we cannot ignore non­compliance of law
    by the State. 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 the
    Government. Hence, we direct that the authorities must follow
    the principles laid down by this Court and uphold the rule of law.
  15. It is contended by the Petitioners that while the Respondents
    stated 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 it thinks that there is a threat
    to the law and order situation or any other such requirement,
    must follow the procedure laid down by law, taking into
    consideration the rights of the citizens, and pass appropriate
    need­based orders. In view of the same, appropriate directions
    are provided in the operative part of this judgment.
  16. Before parting we summarise the legal position on Section 144,
    Cr.P.C as follows:
    117
    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.
    118
    v. Repetitive orders under Section 144, Cr.P.C. would be an
    abuse of power.
    H. FREEDOM OF THE PRESS
  17. The Petitioner in W.P. (C) No. 1031 of 2019 has filed the petition
    basing her contention on the following factual premise, as
    averred:
  18. Writ Petition (Civil) No. 1031 of 2019 was
    filed on 10­08­2019 under Article 32 of the
    Constitution of India by the Executive Editor of
    the newspaper “Kashmir Times”, which
    publishes two editions daily, one from Jammu
    and another from Srinagar. The English
    newspaper, Kashmir Times, was founded in
    1954 as a news weekly. It was later converted
    to a daily newspaper in 1962 and has regularly
    been in print and circulation ever since.
    Kashmir Times is a widely read English
    newspaper in Jammu and Kashmir, and also
    has significant readership in the neighbouring
    States of Punjab, Delhi and Himachal Pradesh.
  19. On 04­08­2019, sometime during the day,
    mobile phone networks, internet services, and
    landline phones were all discontinued in the
    Kashmir valley and in some districts of Jammu
    and Ladakh. No formal orders under which
    such action was taken by the Respondents
    were communicated to the affected population,
    including the residents of the Kashmir Valley.
    This meant that the people of Kashmir were
    plunged into a communication blackhole and
    an information blackout. The actions of the
    119
    respondents have had a debilitating and
    crippling effect on newsgathering, reporting,
    publication, circulation and information
    dissemination, and have also resulted in
    freezing of web portals and news websites.
  20. From the morning of 05­08­2019, with a
    heavy military presence, barricades and
    severance of all communication links, the state
    of Jammu and Kashmir was placed under de
    facto curfew. At the same time, on 05­08­
    2019, the Constitution (Application to Jammu
    and Kashmir) order, 2019, C.O. 272 was
    published in The Gazette of India, vide which
    under the powers vested by Article 370(1) of
    the Constitution of India, Article 367(4) was
    added to the Constitution. Also on 05­08­
    2019, the Jammu and Kashmir Reorganisation
    Bill, 2019, was introduced in the Rajya Sabha,
    and passed. On 06­08­2019, the said Bill was
    passed by the Lok Sabha. The President’s
    assent was given to the Bill on 09­08­2019.
    The Gazette Notification, dt. 09­08­2019 states
    that the Jammu and Kashmir Reorganisation
    Act, 2019, will come into effect from 31st
    October, 2019, and that there shall be a new
    Union Territory of Jammu and Kashmir. All of
    this was carried out while the State of Jammu
    and Kashmir was in a lockdown and silenced
    through a communication shutdown.
  21. In such Circumstances the Kashmir Times’
    Srinagar edition could not be distributed on
    05­08­2019 and it could not be published
    thereafter from 06­08­2019 to 11­10­2019, as
    newspaper publication necessarily requires
    news gathering by reporters traveling across
    the Valley and unhindered interaction with
    public and officials. Due to the indiscriminate
    lockdown­including communication and
    internet blackout­ and severe curbs on
    120
    movement enforced by the respondents, the
    Petitioner was prevented and hindered from
    carrying out her profession and work. Even
    after 11­10­2019 only a truncated copy of the
    newspaper is being published because of the
    severe restrictions in place even today (internet
    services and SMS services are completely shut
    down even after 115 days). The new
    portal/website is frozen till date.
  22. There is no doubt that the importance of the press is well
    established under Indian Law. The freedom of the press is a
    requirement in any democratic society for its effective
    functioning. The first case which dealt with the freedom of the
    press can be traced back to Channing Arnold v. The Emperor,
    (1914) 16 Bom LR 544, wherein the Privy Council stated that:
    “36. The freedom of the journalist is an
    ordinary part of the freedom of the subject and
    to whatever length, the subject in general may
    go, so also may the journalist, but apart from
    the statute law his privilege is no other and no
    higher. The range of his assertions, his
    criticisms or his comments is as wide as, and
    no wider than that of any other subject.”
  23. During the drafting of our Constitution, B. N. Rau, while
    commenting on the amendments by Jaya Prakash Narayan, who
    had proposed a separate freedom of press, had commented in the
    following manner:
    121
    “It is hardly necessary to provide specifically
    for the freedom of the press as freedom of
    expression provided in sub­clause (a) of clause
    (1) of article 13 will include freedom of the
    press…”
  24. Thereafter, many judgments of this Court including Bennett
    Coleman v. Union of India, (1972) 2 SCC 788, Indian Express
    (supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR
    842 have expounded on the right of freedom of press and have
    clearly enunciated the importance of the aforesaid rights in
    modern society. In view of the same, there is no doubt that
    freedom of the press needs to be considered herein while dealing
    with the issue of the case at hand.
  25. From the aforesaid factual averment, we may note that the
    Petitioner in W.P. (C) No. 1031 of 2019, with respect to the
    present issue, does not impugn any specific order of the
    government restricting the freedom of the press or restricting the
    content of the press. The allegation of the aforementioned
    Petitioner is that the cumulative effect of various other
    restrictions, such as the imposition of Section 144, Cr.P.C. and
    restriction on internet and communication, has indirectly
    affected the freedom of the press in the valley.
    122
  26. 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. Squarely however, the contention of the
    Petitioner rests on the chilling effects alleged to be produced by
    the imposition of restrictions as discussed above.
  27. Chilling effect has been utilized in Indian Jurisprudence as a
    fairly recent concept. Its presence in the United States of America
    can be traced to the decision in Weiman v. Updgraff, 344 U.S.
  28. We may note that the argument of chilling effect has been
    utilized in various contexts, from being purely an emotive
    argument to a substantive component under the free speech
    adjudication. The usage of the aforesaid principle is chiefly
    adopted for impugning an action of the State, which may be
    constitutional, but which imposes a great burden on the free
    speech. We may note that the argument of chilling effect, if not
    tempered judicially, would result in a “self­proclaiming
    instrument”.
    123
  29. The principle of chilling effect was utilized initially in a limited
    context, that a person could be restricted from exercising his
    protected right due to the ambiguous nature of an overbroad
    statute. In this regard, the chilling effect was restricted to the
    analysis of the First Amendment right. The work of Frederick
    Schauer provides a detailed analysis in his seminal work on the
    First Amendment.22 This analysis was replicated in the context of
    privacy and internet usage in a regulatory set up by Daniel J.
    Solove. These panopticon concerns have been accepted in the
    case of K.S. Puttaswamy (Privacy­9J.) (supra).
  30. We need to concern ourselves herein as to theoretical question of
    drawing lines as to when a regulation stops short of impinging
    upon free speech. A regulatory legislation will have a direct or
    indirect impact on various rights of different degrees. Individual
    rights cannot be viewed as silos, rather they should be viewed in
    a cumulative manner which may be affected in different ways.
    The technical rule of causal link cannot be made applicable in
    the case of human rights. Human rights are an inherent feature
    of every human and there is no question of the State not
    22 Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect
    (1978).
    124
    providing for these rights. In one sense, the restrictions provided
    under Article 19(2) of the Constitution follow a utilitarian
    approach wherein individualism gives way for commonality of
    benefit, if such restrictions are required and demanded by law. In
    this context, the test of ‘direct impact’ as laid down in A.K
    Gopalan v. State of Madras, AIR 1950 SC 27, has been
    subsequently widened in Rustom Cavasjee Cooper v. Union of
    India, 1970 (1) SCC 248, wherein the test of ‘direct and
    inevitable consequence’ was propounded. As this is not a case
    wherein a detailed analysis of chilling effect is required for the
    reasons given below, we leave the question of law open as to the
    appropriate standard for establishing causal link in a challenge
    based on chilling effect.
  31. The widening of the ‘chilling effect doctrine’ has always been
    viewed with judicial scepticism. At this juncture, we may note the
    decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the
    respondent brought an action against the authorities to injunct
    them from conducting surveillance of lawful and peaceful civilian
    political activity, based on the chilling effect doctrine. The United
    States Supreme Court, in its majority decision, dismissed the
    125
    plea of the respondent on the ground of lack of evidence to
    establish such a claim. The Court observed that:
    “Allegations of a subjective “chill” are not an
    adequate substitute for a claim of specific
    present objective harm or a threat of specific
    future harm.”
    Therefore, to say that the aforesaid restrictions were
    unconstitutional because it has a chilling effect on the freedom of
    press generally is to say virtually nothing at all or is saying
    something that is purely speculative, unless evidence is brought
    before the Court to enable it to give a clear finding, which has not
    been placed on record in the present case. [refer to Clapper v
    Amnesty Int’l, USA, 568 U.S. 113 (2013)]
  32. In this context, one possible test of chilling effect is comparative
    harm. In this frame­work, the Court is required to see whether
    the impugned restrictions, due to their broad­based nature, have
    had a restrictive effect on similarly placed individuals during the
    period. It is the contention of the Petitioner that she was not able
    to publish her newspaper from 06­08­2019 to 11­10­2019.
    However, no evidence was put forth to establish that such other
    individuals were also restricted in publishing newspapers in the
    126
    area. Without such evidence having been placed on record, it
    would be impossible to distinguish a legitimate claim of chilling
    effect from a mere emotive argument for a self­serving purpose.
    On the other hand, the learned Solicitor General has submitted
    that there were other newspapers which were running during the
    aforesaid time period. In view of these facts, and considering that
    the aforesaid Petitioner has now resumed publication, we do not
    deem it fit to indulge more in the issue than to state that
    responsible Governments are required to respect the freedom of
    the press at all times. Journalists are to be accommodated in
    reporting and there is no justification for allowing a sword of
    Damocles to hang over the press indefinitely.
    I. CONCLUSION
  33. In this view, we issue the following directions:
    a. The Respondent State/competent authorities are directed to
    publish all orders in force and any future orders under
    Section 144, Cr.P.C and for suspension of telecom services,
    including internet, to enable the affected persons to
    challenge it before the High Court or appropriate forum.
    b. 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
    127
    rights should be in consonance with the mandate under
    Article 19 (2) and (6) of the Constitution, inclusive of the test
    of proportionality.
    c. An order suspending internet services indefinitely is
    impermissible under the Temporary Suspension of Telecom
    Services (Public Emergency or Public Service) Rules, 2017.
    Suspension can be utilized for temporary duration only.
    d. Any order suspending internet issued under the Suspension
    Rules, must adhere to the principle of proportionality and
    must not extend beyond necessary duration.
    e. Any order suspending internet under the Suspension Rules
    is subject to judicial review based on the parameters set out
    herein.
    f. The existing Suspension Rules neither provide for a periodic
    review nor a time limitation for an order issued under the
    Suspension Rules. Till this gap is filled, we 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).
    g. We direct the respondent State/competent authorities to
    review all orders suspending internet services forthwith.
    h. Orders not in accordance with the law laid down above,
    must be revoked. Further, in future, if there is a necessity to
    pass fresh orders, the law laid down herein must be
    followed.
    i. In any case, the State/concerned authorities are directed to
    consider forthwith allowing government websites,
    localized/limited e­banking facilities, hospitals services and
    128
    other essential services, in those regions, wherein the
    internet services are not likely to be restored immediately.
    j. 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.
    k. 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.
    l. 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.
    m.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.
    n. Repetitive orders under Section 144, Cr.P.C. would be an
    abuse of power.
    o. The Respondent State/competent authorities are directed to
    review forthwith the need for continuance of any existing
    orders passed under Section 144, Cr.P.C in accordance with
    law laid down above.
    129
  34. The Writ Petitions are disposed of in the afore­stated terms. All
    pending applications are also accordingly disposed of.
    ……………………………………….J.
    (N.V. RAMANA)
    ……………………………………….J.
    (R. SUBHASH REDDY)
    ……………………………………….J.
    (B. R. GAVAI)
    NEW DELHI;
    JANUARY 10, 2020
    130