An order passed under Section 144 should state the material facts so as to enable its judicial review, the SC bench said
India, where over 100 internet shutdowns were documented, was the third worst-hit after Iraq and Sudan
New Delhi: Sweeping five-month-old restrictions on the internet and the right to assembly that have impacted people’s freedom to conduct their business in Kashmir were on Friday ordered reviewed in a landmark Supreme Court judgement that held up the need to protect constitutional guarantees.
It gave the central government and “competent authorities" a week to complete the review into the clampdown that was imposed on the eve of the 5 August revocation of Article 370 that gave the erstwhile state its special status.
The court also directed the Centre to publish all prohibitory orders in force, future orders under Section 144 of the CrPC and orders suspending telecom services, including the internet, so that affected citizens can challenge them in the high court or another appropriate forum.
“We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade,business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality," the court said in its ruling on a batch of petitions challenging the restrictions.
“In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localised/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately. The power under Section 144 Criminal Procedure Code, 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. The power under Section 144 cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights," said an apex court bench comprising justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai.
“An order passed under Section 144, CrPC 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... Repetitive orders under Section 144, CrPC would be an abuse of power," it added.
The judgement is significant not only for its potential to nudge an easing of communication restrictions in Jammu and Kashmir—now reorganized into two Union territories—but also for reasons of business.
Around 4,196 hours of internet blackouts in India cost the economy close to $1.3 billion in 2019, said a 7 January report by UK-based research firm Top10VPN.
The report analysed every major internet shutdown around the world in 2019 which cost the global economy over $8 billion. India, where over 100 shutdowns were documented, was the third worst-hit after Iraq and Sudan.
The findings for India are based on internet blackouts in Arunachal Pradesh, Assam, Jammu and Kashmir, Meghalaya, Rajasthan, Tripura and Uttar Pradesh.
Analysts have challenged the Centre’s reason for withholding internet access. “We had greater militancy in 1998, and there was no internet then. Now as per government claims, militancy has reduced. For the sake of a few militants it is not right to hold an entire society to hostage. On the contrary, modern communication technology will help to nab them," said Noor Ahmad Baba, a political analyst in Kashmir, adding that the presence of forces had already ensured watertight security in the valley.
The order came primarily on a public interest litigation (PIL) by the editor of Kashmir Times, Anuradha Bhasin, challenging the lockdown in the state. The batch of pleas also included one by Congress leader Ghulam Nabi Azad challenging the restriction. Bhasin’s PIL filed on 10 August sought immediate directions for the removal of restrictions imposed on media, communication and the free movement of people.
Navadha Pandey and Shashwati Das contributed to this story.