ANURADHA BHASIN v. UNION OF INDIA & Ors.

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, A B C D E F G H ANURADHA BHASIN v. UNION OF INDIA & ORS. 821 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. A B C D E F G H 822 SUPREME COURT REPORTS [2020] 1 S.C.R. (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; 886- A-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] A B C D E F G H ANURADHA BHASIN v. UNION OF INDIA & ORS. 823

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 A B C D E F G H 824 SUPREME COURT REPORTS [2020] 1 S.C.R. A 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][904- C]

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 B C D E F G H ANURADHA BHASIN v. UNION OF INDIA & ORS. 825 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][905- D-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] A B C D E F G H 826 SUPREME COURT REPORTS [2020] 1 S.C.R. A

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). B C D E F g. The respondent State/competent authorities directed to G 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. H ANURADHA BHASIN v. UNION OF INDIA & ORS. 827 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-A- E] 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 A B C D E F G H 828 SUPREME COURT REPORTS [2020] 1 S.C.R.