# ANURADHA BHASIN v. UNION OF INDIA & ORS

- **Citation:** [2020] 1 S.C.R. 812
- **Court:** Supreme Court of India
- **Decided:** 2020-01-10
- **Bench:** N. V. Ramana, R. Subhash Reddy, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anuradha-bhasin-v-union-of-india-ors-34286
- **Pages:** 97

## Headnote

Code of Criminal Procedure, 1973 - s. 144 - Temporary
Suspension of Telecom Services (Public Emergency or Public Service)
Rules, 2017 - Exemption from production of orders passed u/s. 144
Cr. P.C. and under the suspension Rules by the Government - Claim
of - Various Authorities passed orders restricting the movement and
communication in the State of Jammu and Kashmir, however, the
orders were not placed before the Court - Held: There are two
separate types of reasoning that mandate the production of the
orders passed by the authorities - First, Art. 19 of the Constitution
mandate right to information as an important facet of the right to
freedom of speech and expression - A democracy, which is sworn
to transparency and accountability, necessarily mandates the
production of orders as it is right of an individual to know - 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 - 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
cladestine manner - When there is a curtailment of fundamental
right 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 the instant 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 the Court - This is not a valid ground
to refuse production of orders before the Court.
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Constitution of India - Art.19(1)(g) - Freedom of trade and
commerce through the medium of the internet - Protection u/Art.
19(1)(g) - Held: Internet is a very important tool for trade and
commerce - The globalization of the Indian economy and the rapid
advances in information and technology have opended up vast
business avenues and transformed India as a global IT hub - 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 u/Art. 19(1)(g), subject to the restrictions provided u/Art.
19(6).
Doctrine/ Principles - Doctrine of proportionality -
Requirement of - Constitution of India - Art. 19(1)(g) - Held: 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 affected parties, the
same should be supported by sufficient material and should be
amenable to judicial review.
Doctrine/ Principles - Doctrine of Proportionality -
Immediate impact of restrictions upon the realization of the
fundamental rights - Held: 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 imp

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ANURADHA BHASIN
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 1031 of 2019)
JANUARY 10, 2020
[N. V. RAMANA, R. SUBHASH REDDY
AND B. R. GAVAI, JJ.]
Code of Criminal Procedure, 1973 - s. 144 - Temporary
Suspension of Telecom Services (Public Emergency or Public Service)
Rules, 2017 - Exemption from production of orders passed u/s. 144
Cr. P.C. and under the suspension Rules by the Government - Claim
of - Various Authorities passed orders restricting the movement and
communication in the State of Jammu and Kashmir, however, the
orders were not placed before the Court - Held: There are two
separate types of reasoning that mandate the production of the
orders passed by the authorities - First, Art. 19 of the Constitution
mandate right to information as an important facet of the right to
freedom of speech and expression - A democracy, which is sworn
to transparency and accountability, necessarily mandates the
production of orders as it is right of an individual to know - 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 - 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
cladestine manner - When there is a curtailment of fundamental
right 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 the instant 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 the Court - This is not a valid ground
to refuse production of orders before the Court.
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Constitution of India - Art.19(1)(g) - Freedom of trade and
commerce through the medium of the internet - Protection u/Art.
19(1)(g) - Held: Internet is a very important tool for trade and
commerce - The globalization of the Indian economy and the rapid
advances in information and technology have opended up vast
business avenues and transformed India as a global IT hub - 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 u/Art. 19(1)(g), subject to the restrictions provided u/Art.
19(6).
Doctrine/ Principles - Doctrine of proportionality -
Requirement of - Constitution of India - Art. 19(1)(g) - Held: 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 affected parties, the
same should be supported by sufficient material and should be
amenable to judicial review.
Doctrine/ Principles - Doctrine of Proportionality -
Immediate impact of restrictions upon the realization of the
fundamental rights - Held: 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
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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.
Constitution of India - Indefinite internet shut down by the
Government - Validity of - Held: One of the gaps must be highlighted
relates to the usage of the word 'temporary' in the title of the
'Temporary Suspension of Telecom Services (Public Emergency or
Public Service) Rules, 2017 '- Despite the above, there is no
indication of the maximum duration for which a suspension order
can be in operation - Keeping in view the requirements of
proportionality, an order suspending the aforesaid services
indefinitely is impermissible - 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, the Review
Committee constituted u/r. 2(5) of the Suspension Rules directed to
conduct a periodic review within seven working days of the previous
review, in terms of the requirements u/r. 2(6).
Words and Phrases - 'emergency' - 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 - The 'public emergency' is required to
be of serious nature, and needs to be determined on a case to case
basis.
Code of Criminal Procedure, 1973 - s.144 - Various
Authorities passed orders restricting movements u/s. 144 on 4.8.2019
in the State of Jammu and Kashmir - Validity of - Petitioners
contended that there had to be a circumstance on 4.8.2019 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 tranquility and Government could not have passed
such orders in anticipation or on the basis of apprehension - Held:
The power u/s. 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
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purpose of preventing obstruction and annoyance or injury to any
person lawfully employed - While passing orders u/s.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 - In the instant case, it
was contended by the petitioners that the majority of the
geographical area of the erstwhile State of Jammu and Kashmir
was placed under orders passed u/s. 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, that it is an issue of national security
and cross border terrorism - Although, the restrictions were removed
on 27.9.2019, thereby rendering the present exercise into a virtually
academic one, however, the non-compliance of law by the State
cannot be ignored - Hence, the authorities directed to follow the
principles laid down by the Supreme court and upheld the rules of
law.
Code of Criminal Procedure, 1973 - Order passed u/s. 144 -
Judicial review - Scope of - Held: The existence of the power of
judicial review is undeniable - It is for the Magistrate and the State
to make an informed judgment about the likely threat to public peace
and law and order - The State is best placed to make an assessment
of threat to public peace and tranquillity or law and order -
However, the law requires them to state the material facts for invoking
this power - This will enable judicial scrutiny and a verification of
whether there are sufficient facts to justify the invocation of this
power.
Constitution of India - Freedom of Press - Restriction on -
The petitioner alleged that the cumulative effect of various
restrictions on 4.8.2019 in the State of Jammu and Kashmir, such as
the imposition of s.144 Cr. P.C. and restriction on internet and
communication, has indirectly affected the freedom of the press in
the valley - The contention of petitioner rests on the chilling effects
alleged to be produced by the imposition of restrictions - Held:
One possible test of chilling effect is comparative harm - In this
frame-work, the Court is required to see whether the impugned
restrictions, due to their broad-based 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
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newspaper from 06.08.2019 to 11.10.2019 - However, no evidence
was put forth to establish that such other individuals were also
restricted in publishing newspapers in the 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 self-serving purpose - On the other hand, 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, it is not 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.
Doctrine/ Principles - Principle of chilling effect - discussed.
Disposing of the writ petitions, the Court
HELD :
PRODUCTION OF ORDERS
1. There are two separate types of reasoning that mandate
this Court 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
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. [Para 15][847-B-C]
2. 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. [Para
16][847-D]
3. 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
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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. [Para 17][847-F-G; 848A]
4. 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 the opinion of this Court, this is not a valid ground
to refuse production of orders before the Court. [Para 18][848B]
FUNDAMENTAL RIGHTS UNDER PART III AND
RESTRICTIONS THEREOF
5. 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). [Para
27][850-D-E]
6. It has been argued by the Petitioners that the restrictions
under Article 19 of the Constitution cannot mean complete
prohibition. In this context, 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. [Para 32][851-F]
7. The study of various case laws points to three
propositions which emerge with respect to Article 19(2) of the
Constitution. (i) Restriction on free speech and expression may
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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
with regard to the facts and circumstances of each case. [Para
33][852-A-C]
8. 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. [Para 46][856D]
9. 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. [Para 53][858-C-D]
10. 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
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has serious implications on the fundamental rights of the affected
parties, the same should be supported by sufficient material and
should be amenable to judicial review. [Para 70][870-E-G]
11. 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. [Para 71][871A]
12. 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.
[Para 72][871-B-C]
13. There is ample merit in the contention of the
Government that the internet could be used to propagate
terrorism thereby challenging the sovereignty and integrity of
India. This Court would only observe that achievement of peace
and tranquillity within the erstwhile State of Jammu and Kashmir
requires a multifaceted approach without 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.
[Para 76][871-G-H; 872-A]
INTERNET SHUTDOWN
14. The complete broad suspension of telecom services,
be it the Internet or otherwise, being a drastic measure, must be
considered by the State only if 'necessary' and 'unavoidable'. In
furtherance of the same, the State must assess the existence of
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an alternate less intrusive remedy. Having said so, it is noted
that the Temporary Suspension of Telecom Services (Public
Emergency or Public Service) Rules, 2017 have certain gaps,
which are required to be considered by the legislature. [Para
99][881-C]
15. 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, this Court is 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. Therefore, it is directed
that the Review Committee constituted under Rule 2(5) of the
Suspension Rules must conduct a periodic review within seven
working days of the previous review, in terms of the requirements
under Rule 2(6). The Review Committee must therefore not only
look into the question of whether the restrictions are still in
compliance with the requirements of Section 5(2) of the Telegraph
Act, but must also look into the question of whether the orders
are still proportionate, keeping in mind the constitutional
consequences of the same. It is clarified 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. [Para 100][881-D-G]
RESTRICTIONS UNDER SECTION 144 OF CRPC
16. The safeguards in Section 144, Cr.P.C. are discussed
below and deserve close scrutiny.
(a) Prior Inquiry before issuing Order: Before issuing an
order under Section 144, Cr.P.C., the District Magistrate (or any
authorised Magistrate) must be of the opinion that:
(i)
There is a sufficient ground for proceeding under this
provision i.e. the order is likely to prevent obstruction,
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annoyance or injury to any person lawfully employed
or danger to human life, health or safety or disturbance
to the public tranquillity; and
(ii) Immediate prevention or speedy remedy is desirable.
The phrase "opinion" suggests that it must be arrived at
after a careful inquiry by the Magistrate about the need to exercise
the extraordinary power conferred under this provision.
(b) Content of the Order: Once a Magistrate arrives at an
opinion, he may issue a written order either prohibiting a person
from doing something or a mandatory order requiring a person
to take action with respect to property in his possession or under
his management. But the order cannot be a blanket order. It must
set out the "material facts" of the case. The "material facts" must
indicate the reasons which weighed with the Magistrate to issue
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 two-month period outer limit for the Magistrate,
and a six-month limit for the State Government, has been provided
under Section 144, Cr.P.C. but the concerned Magistrate and
the State Government must take all steps to ensure that the
restrictions are imposed for a limited duration.
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(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. [Para 108][884-G-H; 885-B-H; 886A-C]
17. The 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 un-notified.
This Court, in the case of Babulal Parate, 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. [Para 129][896-H; 897-A-B]
18. 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. It is cautioned
against the excessive utility of the proportionality doctrine in the
matters of national security, sovereignty and integrity. [Para
130][897-E-G]
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19. The existence of the power of judicial review is
undeniable. The opinion that it is for the Magistrate and the State
to make an informed judgement about the likely threat to public
peace and law and order. The State is best placed to make an
assessment of threat to public peace and tranquillity or law and
order. However, the law requires them to state the material facts
for invoking this power. This will enable judicial scrutiny and a
verification of whether there are sufficient facts to justify the
invocation of this power. [Para 132][899-B-C]
20. 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. [Para 133][899-D-E]
21. An order passed under Section 144, Cr.P.C. should be
indicative of proper application of mind, which should be based
on the material facts and the remedy directed. Proper reasoning
links the application of mind of the officer concerned, to the
controversy involved and the conclusion reached. Orders passed
mechanically or in a cryptic manner cannot be said to be orders
passed in accordance with law. [Para 134][899-F]
22. Although the restrictions have been allegedly removed
on 27.09.2019, thereby rendering the present exercise into a
virtually academic one, this Court cannot ignore non-compliance
of law by the State. 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, the authorities directed to follow the
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[2020] 1 S.C.R.
principles laid down by this Court and uphold the rule of law.
[Para 138][900-F]
23. The legal position on Section 144, Cr.P.C is summarised
as follows:
(i) The power under Section 144, Cr.P.C., being remedial
as well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of danger.
However, the danger contemplated should be in the nature of an
"emergency" and for the purpose of preventing obstruction and
annoyance or injury to any person lawfully employed.
(ii) The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
(iii) An order passed under Section 144, Cr.P.C. should state
the material facts to enable judicial review of the same. The power
should be exercised in a bona fide and reasonable manner, and
the same should be passed by relying on the material facts,
indicative of application of mind. This will enable judicial scrutiny
of the aforesaid order.
(iv) While exercising the power under Section 144, Cr.P.C.
the Magistrate is duty bound to balance the rights and restrictions
based on the principles of proportionality and thereafter apply
the least intrusive measure. [Para 140][901-B-F]
FREEDOM OF THE PRESS
24. 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. [Para 146][904C]
25. 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
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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. 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 (Privacy-9J.). [Para 148][904-F-G]
26. The widening of the 'chilling effect doctrine' has always
been viewed with judicial scepticism. At this juncture, one 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 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. [Para 150][905D-G]
27. One possible test of chilling effect is comparative harm.
In this frame-work, the Court is required to see whether the
impugned restrictions, due to their broad-based 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 06-08-2019 to 11-10-2019.
However, no evidence was put forth to establish that such other
individuals were also restricted in publishing newspapers in the
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 self-serving purpose.
[Para 151][905-H; 906-A-B]
ANURADHA BHASIN v. UNION OF INDIA & ORS.
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28. In this view, the following directions are issued:
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. This Court declares that the freedom of speech and
expression and the freedom to practice any profession or carry
on any trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and Article
19(1)(g). The restriction upon such fundamental rights should be
in consonance with the mandate under Article 19 (2) and (6) of
the Constitution, inclusive of the test of proportionality.
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, the Review Committee
constituted under Rule 2(5) of the Suspension Rules directed to
conduct a periodic review within seven working days of the
previous review, in terms of the requirements under Rule 2(6).
g. The respondent State/competent authorities directed 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.
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i. In any case, the State/concerned authorities are directed
to consider forthwith allowing government websites, localized/
limited e-banking facilities, hospitals services and other essential
services, in those regions, wherein the internet services are not
likely to be restored immediately. [Para 152][906-D-H; 907-AE]
Ram Jethmalani v. Union of India, (2011) 8 SCC 1 :
[2011] 8 SCR 725; K.S. Puttaswamy (Retired) v. Union
of India, (2019) 1 SCC 1; CPIO v. Subhash Chandra
Aggarwal, (2019) SCC OnLine SC 145; Chintaman
Rao v. State of Madhya Pradesh, AIR 1951 SC 118 :
[1950] SCR 759; State of Madras v. V.G. Row, AIR 1952
SC 196 : [1952] SCR 597; Mohammed Faruk v. State
of Madhya Pradesh, (1969) 1 SCC 853 : [1970] 1 SCR
156; Om Kumar v. Union of India, (2001) 2 SCC 386 :
[2000] 4 Suppl. SCR 693; State of Bihar v. Kamla Kant
Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181;
Bishambhar Dayal Chandra Mohan v. State of Uttar
Pradesh, (1982) 1 SCC 39 : [1982] 1 SCR 1137;
Modern Dental College & Research Centre v. State of
Madhya Pradesh, (2016) 7 SCC 353; R. v. Oakes,
[1986] 1 SCR 103 (Can) SC; K. S. Puttaswamy v. Union
of India, (2017) 10 SCC 1 : [2017] 10 SCR 569; Hukam
Chand Shyam Lal v. Union of India, (1976) 2 SCC 128
: [1976] 2 SCR 1060; People's Union for Civil Liberties
(PUCL) v. Union of India, (1997) 1 SCC 301 : [1996]
10 Suppl. SCR 321; B.K. Srinivasan v. State of
Karnataka, (1987) 1 SCC 658 : [1987] 1 SCR 1054;
Madhu Limaye v. Sub-Divisional Magistrate,
Monghgyr, (1970) 3 SCC 746 : [1971] 2 SCR 711;
Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC
226 : [1978] 2 SCR 419; Gulam Abbas v. State of Uttar
Pradesh, (1982) 1 SCC 71 : [1982] 1 SCR 1077;
Acharya Jagdishwaranand Avadhuta v. Commr. of
Police, Calcutta, (1983) 4 SCC 522 : [1984] 1 SCR
447; Babulal Parate v. State of Bombay, AIR 1960 SC
51 : [1960] SCR 605; Ram Manohar Lohia v. State of
Bihar, AIR 1966 SC 740 : [1966] SCR 709; Ramlila
ANURADHA BHASIN v. UNION OF INDIA & ORS.
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Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR
971; State of Karnataka v. Dr. Praveen Bhai Thogadia,
(2004) 4 SCC 684 : [2004] 3 SCR 652 - relied on.
Secretary, Ministry of Information & Broadcasting
Government of India v. Cricket Association of Bengal,
(1995) 2 SCC 161 : [1995] 1 SCR 1036; Shreya Singhal
v. Union of India, (2015) 5 SCC 1 : [2015] 5 SCR 963;
Indian Express v. Union of India, (1985) 1 SCC 641 :
[1985] 2 SCR 287; Odyssey Communications Pvt. Ltd.
v. Lokvidayan Sanghatana, (1988) 3 SCC 410 : [1988]
1 Suppl. SCR 486; 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 : [1995] 2 Suppl. SCR 426; Pratap Pharma
(Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 : [1997]
3 SCR 492; Dharam Dutt v. Union of India, (2004) 1
SCC 712 : [2003] 6 Suppl. SCR 151; State of Gujarat
v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC
534 : [2005] 4 Suppl. SCR 582; Minerva Mills Ltd. v.
Union of India, (1980) 2 SCC 591 : [1981] 1 SCR 206;
Sanjeev Coke Manufacturing Company v. M/s Bharat
Coking Coal Ltd., (1983) 1 SCC 147 : [1983] 1 SCR
1000; Maneka Gandhi v. Union of India, (1978) 1 SCC
248 : [1978] 2 SCR 621; State of Bihar v. Kamla Kant
Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181;
Channing Arnold v. The Emperor, (1914) 16 Bom LR
544; Bennett Coleman v. Union of India, (1972) 2 SCC
788 : [1973] 2 SCR 757; Sakal Papers (P) Ltd. v. Union
of India, [1962] 3 SCR 842; A.K Gopalan v. State of
Madras, AIR 1950 SC 27 : [1950] SCR 88; Rustom
Cavasjee Cooper v. Union of India, (1970) 1 SCC 248
: [1970] 3 SCR 530; National Investigation Agency v.
Zahoor Ahmad Shah Watali, (2019) 5 SCC 1- referred
to.
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Ex parte Vallandigham, 28 F. Cas. 874 (1863)];
Abraham v. United States, 250 U.S. 616 (1919); Dennis
v. United States, 341 US 494 (1951); Brandenburg v.
Ohio, 395 US 444 (1969); R v. Goldsmith, [1983] 1 WLR
151, 155; Kwok Wing Hang and Ors. v. Chief Executive
in Council, [2019] HKCFI 2820; Weiman v. Updgraff,
344 U.S. 183; Laird v. Tantum, 408 U.S. 1 (1972);
Clapper v. Amnesty Int'l, USA, 568 U.S. 113 (2013)];
Public Committee Against Torture in Israel v. Israel, 38
I.L.M. 1471 (1999) - referred to.
Lon L. Fuller, Positivism and Fidelity to Law: A Reply to
Professor Hart, The Harvard Law Review, 71(4), 630,
651 [February, 1958]; Gregory S. McNeal, Cyber
Embargo: Countering the Internet Jihad, 39 Case W.
Res. J. Int'l L. 789 (2007); Kai Möller, Constructing
the Proportionality Test: An Emerging Global
Conversation, Reasoning Rights Comparative Judicial
Engagement (Hart Publishing, 2014); Robert Alexy, A
Theory of Constitutional Rights (Oxford, Oxford
University Press, (2002) 47 - referred to.
Case Law Reference
[2017] 10 SCR 569
relied on
Para 8
(2019) 5 SCC 1
referred to
Para 8
[1960] SCR 605
relied on
Para 8
[1971] 2 SCR 711
relied on
Para 8
[2011] 8 SCR 725
relied on
Para 14
[1995] 1 SCR 1036
referred to
Para 25
[2015] 5 SCR 963
referred to
Para 25
[1985] 2 SCR 287
referred to
Para 26
[1988] 1 Suppl. SCR 486
referred to
Para 26
AIR 1954 SC 634
referred to
Para 32
ANURADHA BHASIN v. UNION OF INDIA & ORS.
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
[1960] 2 SCR 375
referred to
Para 32
[1969] 2 SCR 392
referred to
Para 32
[1995] 2 Suppl. SCR 426
referred to
Para 32
[1997] 3 SCR 492
referred to
Para 32
[2003] 6 Suppl. SCR 151
referred to
Para 32
[2005] 4 Suppl. SCR 582
referred to
Para 33
[1981] 1 SCR 206
referred to
Para 34
[1983] 1 SCR 1000
referred to
Para 34
[1950] SCR 759
relied on
Para 53
[1952] SCR 597
relied on
Para 53
[1970] 1 SCR 156
relied on
Para 53
[2000] 4 Suppl. SCR 693
relied on
Para 53
[1970] 3 SCR 181
relied on
Para 53
[1982] 1 SCR 1137
relied on
Para 53
(2016) 7 SCC 353
relied on
Para 54
[1986] 1 SCR 103 (Can) SC relied on
Para 57
(2019) 1 SCC 1
relied on
Para 66
[1978] 2 SCR 621
referred to
Para 79
[1976] 2 SCR 1060
relied on
Para 90
[1996] 10 Suppl.