SC’s Verdict on Curbs Imposed in J&K

• 11 Jan 2020

Why in News

The Supreme Court has recently given its ruling on the Kashmir lockdown and communications shutdown cases.

• The cases were also related to the impact of the prohibitory orders issued under Section 144 of the Code of Criminal Procedure (CrPC) on press freedom.
• Internet access was snapped after Jammu and Kashmir’s special status was revoked and the state bifurcated into two union territories, Jammu and Kashmir, and Ladakh.

Key Points

• Ruling on Suspension of Internet
  
  • Suspending Internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017.
  • The court held that suspension could be done for temporary duration only and the same is subject to judicial review.
  • A "complete and broad" suspension of telecom and Internet services should be resorted to only as a drastic measure in an "unavoidable" situation.
  • The Court has thus asked the government to review within seven days all orders directing suspension of internet services.
• Upheld Fundamental Rights
  
  • The freedom of free speech and expression on the Internet is a fundamental right under Article 19(1)(a) of the Constitution. The State cannot cite the extensive reach and impact of the Internet as a medium in order to restrict this right.
  • Trade, occupation or commerce dependent on the Internet is a fundamental right under Article 19(1)(g).
  • 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.

Note: The Doctrine of Proportionality postulates that the nature and extent of the State’s interference with the exercise of a right must be proportionate to the goal it seeks to achieve.

• Ruling on Section 144
  
  • The Court held that the repetitive orders under Section 144 CrPC as an abuse of power.
  • The Court said that power under the Section 144 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”.
  • The government cannot recourse to blanket use of the power under Section 144 CrPC (for issuing restrictions) as a tool to prevent the legitimate expression of opinion or grievance or exercise of any fundamental rights. There is a need to find a balance regarding security and liberty of people.
  • The Court has thus asked the authorities to review forthwith the need for continuance of any such order.

Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017

• These are the rules to be followed if the government intends to temporarily suspend telecom services in any part of the country.
• According to these rules, only the Home Secretary of the country and a secretary of a state’s home department can pass such an order.
• These also state that any such order should be taken up by a review committee within five days.
• These rules have been framed by the government on the basis of the powers conferred by section 7 of the Indian Telegraph Act, 1885.

Relevant Provisions of Article 19

• Article 19(1)(a) states that all citizens shall have the right to freedom of speech and expression.
• Article 19(1)(g) states that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.
• Article 19 (2) states that the State can impose reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the :
  
  • Sovereignty and integrity of India,
  • 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.
• Under Article 19(6), the State can impose reasonable restrictions on the exercise of the right provided under Article 19(1)(g) in the interest of the general public.

Section 144 of the Code of Criminal Procedure

• Section 144 CrPC, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
• Powers
  
  • The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
  • This usually includes restrictions on movement, carrying arms and form assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
• Section 144 CrPC has often been used to clamp down on telecommunication services and order Internet shutdowns.

Source: TH