SAMAH ABDUL MAJID
Government Law College, Kozhikode.
The Supreme Court of India
WP (CS) No. 1031 of 2019 & WP (CS) No. 1164 of 2019
Decided on: 10 January 2020
Bench: N.V. Ramana & V. Ramasubramanian
Petitioners: Anuradha Bhasin , Ghulam Nabi Azad
Respondents: Union of India & Ors.
Ever since Independence the position of Jammu and Kashmir in the Indian Territory, it’s Constitution and Politics has been one of much ambiguity and dispute and more often than not bloody. The measure of control the Nation has over the State has constantly been put into question. It has been subject to several disputes and criticisms in spite of the constitutional provisions set out to abate the very same. Lately by virtue of Constitutional Order 2721, the Union has single-handedly succeeded in nullifying the special status2 of the State as well as dividing the State into two Union Territories, thereby ending the legacy and disputes over Kashmir, as a State.
Seemingly, while the fate of Jammu and Kashmir was being decided, the State was restrained under a complete information blackout along with restrictions placed on movement. A writ petition filed for ascertaining the legality of such orders, and claiming immediate relief from the restrictive measures has been recently decided by the Honourable Supreme Court. The decision of the Court has given rise to criticisms, questioning the socio-political impact of the decision, as well as the arbitrary actions of the Union disregarding the consequential violations of fundamental rights. The Court while deciding should keep in mind that such a decision is bound to be looked upon as a precedent in prospective cases, thereby affecting the interests of not just a state but that of the entire nation. For this reason, the decision of the Supreme Court has opened up the scope for a thorough analysis of the issues raised and the judgement pronounced.
The issue began when the Civil Secretariat, Home Department of the State of Jammu and Kashmir issued a Security Advisory to the tourists and Amarnath Yatris to truncate their stay and make preparations for return in the interests of safety and security. On 4/08/2019 all forms of communication services including mobile networks, landlines, and internet services were cut off in the valley, also placing restrictions on movement. Prior to this, educational institutions and offices were shut down. On 5/08/2019 Constitutional Order 272 was passed by the President abrogating Article 370 of the Constitution, whereby all the provisions of the Constitution now become applicable to the State of Jammu and Kashmir, as well as modifying Article 367 in its applicability to the State. On the same day Section 144 CrPC was imposed over the State by District Magistrates. Aggrieved by the aforesaid restrictions, a suit was initiated through a writ petition by Ms. Anuradha Bhasin, Executive Editor of the Kashmir Times by virtue of Article 32.
- Whether the imposition of restrictions under Section 144 Cr.P.C. was valid?
- 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?
- Whether the freedom of speech and expression and the freedom to practice any profession, or to carry on any occupation, trade or business over the internet is a part of the fundamental rights under Part III of the Constitution?
- Whether the Government’s action of prohibiting internet access is valid?
- Whether freedom of press of the Petitioner was violated due to the restrictions?
ARGUMENTS OF THE PETITIONER
The Counsel appearing for the Petitioner stated that they were unable to function the Srinagar edition of Kashmir Times, post 5/08/2019 due to the restrictions imposed. Curtailing the internet is a violation of Fundamental Rights under Articles 19(1)(a) and 19(1)(g)3 and should be subjected to the test of proportionality. Restrictions on internet services passed by virtue of Suspension Rules4 contemplate the restrictions to be temporary. The Orders so passed suffer from non-application of mind and moreover, they did not provide any reasoning as to the necessity of such restrictions, as is required by procedure. Finally, the Learned Counsel for the Petitioner contended that the Orders are based on mere apprehension of danger rather than actual danger.
ARGUMENTS OF THE RESPONDENT
The Learned Solicitor General who appeared on behalf of the State observed that the primary duty of a State was to ensure the safety and security of its citizens. Stating further that the Petitioners were relying on incorrect facts and individual movement was never restricted. There was a due application of mind. He contended that the Orders passed under Section 144 Cr.P.C. can be preventive in nature, in order to prevent danger to public safety, keeping in mind the history and background of the State. He submitted that when there is no mala fide alleged by the Petitioner, the Court has limited jurisdiction to sit in appeal over the decision to impose Section 144 Cr.P.C. Further, the internet was never suspended in the Jammu and Ladakh regions and the “jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both media are different”. Moreover, it is not possible to ban certain websites alone. Finally, the Solicitor General contended that the Orders passed under the Suspension Rules were indeed in compliance with the procedure.
After hearing the parties, the Court, on 10 January 2020, finally passed the following verdict –
- The State is directed to publish all Orders and any future orders made under Section 144 Cr.P.C. as well as Suspension Rules, to enable the affected persons to challenge it before a competent court.
- Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restrictions upon such fundamental rights should align with the mandate under Article 19(2) and (6)5, inclusive of the test of proportionality.
- The Review Committee constituted under Rule 2(5)6of the Suspension Rules must conduct a periodic review within seven working days of the previous review. The State is directed to review all Orders suspending internet services forthwith. Orders not in concurrence with the law laid down herein shall be revoked.
- An Order passed under Section 144 Cr.P.C. should state material facts, the power should be exercised in a bona fide and judicial manner, and should be passed relying on the material facts, indicative of application of mind. The Magistrate is bound to follow the principle of proportionality and apply the least intrusive measure. Repetitive orders under this Section is an abuse of power.
The decision of the Honourable Supreme Court did not guarantee any immediate relief to the Petitioners. The Court, in its judgement stated that the power under Section 144 CrPC should be exercised in a bonafide manner. In light of such an observation, the Court should have examined the circumstances underlying the imposition of restrictions in the valley. It was essential for the Court to consider the issue:
Whether the Orders passed under Section 144 Cr.P.C. was completely bonafide or was it in pursuance of any ulterior political motives?
As facts have it, on 5/09/2019 the State was put under heavy restrictions and total information blackout whereby it’s people were forced into ignorance of the Order passed, determining the fate of Jammu and Kashmir. On examination of the events that led up to the proclamation of such an Order, the events show a pattern of arbitrariness.
In April 2018, the Supreme Court headed by a bench of Justices Adarsh K. Goel and R.P. Nariman observed that “Article 370 of the Constitution conferring special status on Jammu and Kashmir and limiting the Central Government’s power to make laws for the State had acquired permanent status through years of existence, making its abrogation impossible”7
Article 370(3) of the Constitution confers powers on the President of India to declare, with exceptions and modifications, Article 370 as operative or inoperative, provided that he has a prior recommendation of the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly of the State was dissolved in 1957 after drafting the State’s Constitution. This is the contributing reason by which the Supreme Court declared permanency to Article 370. In order to overcome this situation the President, by virtue of the power conferred upon him under Article 370(1)8, made modifications to Article 3679 by adding a new clause which replaced the phrase ‘Constituent Assembly of the State’ to ‘Legislative Assembly of the State’. With this amendment, the President rendered himself capable of abrogating Article 370, the one which the Supreme Court laid down as “permanent” and “impossible to abrogate”. Constitutional Order 272 further stated that if the Legislative Assembly is in suspension, the power to take decisions on behalf of the same rests on the Governor of the State.
It is no coincidence that the day the Order’s were passed, the Legislative Assembly was temporarily suspended due to the restrictions imposed over the State. Thus the abrogation of Article 370 was effectively passed without any opposition from the State legislature, and with the concurrence of the Governor, a Central Government appointee.
All these facts underlying the restrictions imposed in the State, suggests, at the very least, a sufficient and reasonable ground to suspect that the Order was not passed in complete good faith. The Court was bound to examine such an issue since the matter at hand involves violation of the Fundamental Rights of an entire State.
The Orders of restrictions imposed by virtue of both Section 144 of Cr.P.C and the Suspension Rules did not state any material facts which warranted such an order. Material facts are what enables judicial review on such Orders. The importance of stating material facts have been emphasized by this Court in several cases including the Babulal Parate10 case of 1960. In Ram Jethmalani vs. Union of India11, the Court specifically held that
“So that the right guaranteed by Article 32(1) 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”.
Therefore, failure to follow procedural requirements as well as non-compliance of law by the State is contemplated to be enough reason for the Court to quash such Orders and grant relief to the Petitioners as well as the citizens of the State.
The current socio-political environment in India is such that the decisions made by the Courts, especially one which involves questions relating to fundamental rights, require utmost care and attention. India, in many of its aspects, has become more of an autocracy than a democracy. The last shreds of the country’s hope to protect its democracy and Constitution rests on the judicial system. In such desperate times, it wouldn’t do if people lost faith in their Judiciary.
1. The Gazette of India, “The Constitution (Application to Jammu and Kashmir) Order, 2019” (5 August 2019).↩
2. The Constitution of India, art. 370.↩
3. Id., arts. 19(1)(a), 19(1)(g).↩
4. Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.↩
5. Supra note 2, arts. 19(2), 19(6).↩
6. Supra note 4, Rule 2(5).↩
7. Dhananjay Mahapatra, “Article 370 has acquired permanent status : Supreme Court”, The Times of India, April 4 2018, available at : https://timesofindia.indiatimes.com/india (last visited on January 12, 2021).↩
8. Supra note 2, art. 370(1).↩
9. Id., art. 367.↩
10. Babulal Parate v. State of Maharashtra, AIR 1960 SC 51.↩
11. Ram Jethmalani v. Union of India, AIR 2011 SCC 1.↩