[Kashmir Lockdown] 'Indefinite Internet Suspension Not Permissible' : SC Asks J&K Administration To Review All Restrictive Orders Within A Week [Read Judgment]

In a significant judgment, the Supreme Court on Friday directed the Jammu and Kashmir administration to review all orders of restrictions imposed in Jammu and Kashmir post the abrogation of the state's special status within a week.

The Court observed that indefinite suspension of internet is not permissible and that repeated orders under Section 144 CrPC will amount to abuse of power. The Court also added that the Government should publish all orders of restrictions, and should follow the principles of proportionality to adopt less restrictive measures.

"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 bench held. 

The bench started by saying that the Court has not delved into the political intent behind the prohibitory orders.

"Our limited concern is to find a balance regarding security and liberty of people. We only here to ensure citizens are provided their rights. We will not delve into the political intent behind the orders given", Justice Ramana read out from the judgment.

"Kashmir has seen a lot of violence. We will try our best to balance the human rights and freedoms with the issue of security", the Court added.

The highlights from the judgment :

• Freedom of speech and expression through the medium of internet is a fundamental right under Article 19(1)(a) of the Constitution.
• The restrictions on internet have to follow the principles of proportionality under Article 19(2).
• Freedom of trade and commerce through internet is also a constitutionally protected right under Article 19(1)(g).
• Suspension of internet for indefinite period not permissible. It can only be for a reasonable duration and periodic review should be done.
• Government should publish all orders of prohibition to enable affected persons to challenge the same.
• Prohibitory orders under Section 144 CrPC cannot be imposed to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
• Section 144 CrPC orders can be imposed when there is apprehension of danger. But the danger must be in the nature of an "emergency".
• While passing orders under Section 144 CrPC, Magistrate has to balance interests of individual rights and concerns of state.
• The orders under Section 144 CrPC should state material facts to enable judicial review. The power should be exercised in a reasonable and bona fide manner.

The internet shutdown in Kashmir has crossed 150 days, which is reportedly the longest ever in a democracy.

The following were the issues considered by the Court :

• I. 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?
• II. Whether the freedom of speech and expression and freedom to practise 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?
• III. Whether the Government's action of prohibiting internet access is valid?
• IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
• V. Whether the freedom of press of the Anuradha Bhasin, Kashmir Times Editor, was violated due to the restrictions? 

On November 27, a three judges bench comprising Justices N V Ramana, R Subhash Reddy and B R Gavai had reserved judgment on a bunch of petitions challenging the constitutionality of Kashmir lockdown, which was imposed in the wake of abrogation of the special status of Jammu and Kashmir on August 5 last year.

The Court had heard the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times, Congress Rajya Sabha MP Ghulam Nabi Azad and few intervenors.

The petitioners mainly argued that the restrictions on the liberties of citizens under Article 19 failed to satisfy the tests of reasonableness and proportionality as laid down by the Supreme Court in the Puttaswamy case on right to privacy.

Also, restrictions of such a wide scale for a period spanning over three months can be invoked only by declaring an emergency under Article 352 of the Constitution. Such restrictions cannot be imposed through orders of District Magistrates under Section 144 of the Code of Criminal Procedure. A declaration of emergency under Article 352 will be subjected to periodic review of the Parliament, and that way possibilities of abuse could be checked, argued the petitioners.

The restrictions have virtually paralyzed the lives of 7 million people; their daily lives have been impacted. Education, medical care, business, agriculture, tourism etc, have taken a bad hit due to the lockdown of the state, submitted the petitioners.

Advocate Vrinda Grover (for Bhasin), Senior Advocate Kapil Sibal (for Azad), Senior Advocates Huzefa Ahmadi and Dushyant Dave (for intervenors) submitted arguments for petitioners.

The Central Government and J&K Administration, represented by the Attorney General and Solicitor General respectively, submitted that the restrictions were necessary in the interests of national security. It was submitted that internet ban is necessary to cut-off the co-ordination amongst militants. The restrictions have ensured that the "historic decision" of the Government to revoke the special status of the state was implemented without any bloodshed, the state argued.

Click here to download the Judgment