“Silence that speaks so much louder than words”

“Silence that speaks so much louder than words”

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On a monumental day in the history of the quasi-federal ‘Union of States’ that is our country, the State of Jammu & Kashmir[1] was deprived of the special status granted to it under Article 370 of the Indian Constitution. While that move itself has been subjected to much legal debate and furore, the present article purports to look towards the measures imposed by the Executive immediately after as they imposed orders under Sec. 144 of the Code of Criminal Procedure, 1973 (‘CrPC’) and the judgment of the Hon’ble Supreme Court in petitions challenging such orders.

Measures imposed to restrict movement

Several orders under Sec. 144 were passed by District Magistrates within the State, imposing restrictions on movement and public gatherings. An order under Sec. 144 essentially permits the Executive to deal with “urgent cases of nuisance or apprehended danger” by imposing restrictions against specific individuals or persons residing in a specific area, or to the general public visiting any place or area to abstain from a certain act or to take order with respect to the certain property in their possession or under their management. These orders can be passed by the appropriate authorities if they are of the view that such orders are “likely to prevent or tend to prevent obstruction, annoyance, or injury to any person lawfully employed or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.” 

In the instant judgment, the Hon’ble Court set out the parameters of Sec. 144 of the CrPC. It observed that –

  1. Sec. 144 is a preventive power to preserve public order. An order under Sec. 144 can be passed in a pre-emptively on an apprehension of danger i.e. where an ‘emergency’ relating to the situations set out in Sec. 144(1) is perceived.
  2. Repeated orders under Sec. 144 amount to an abuse of power.
  3. Powers under Sec. 144 cannot be used to supress express legitimate opinion or grievance or the exercise of any ‘democratic right’.
  4. An order passed under Sec. 144 should be a reasoned order, stating material facts to enable judicial review.
  5. The powers under Sec. 144 must be exercised by applying the principle of proportionality. The restrictions and the rights of individuals affected by the orders must be balanced to impose the least intrusive restrictions.

While discussing the principle of proportionality in great detail, the Hon’ble Court analysed the work of several legal scholars as well as the application of the principle under the democratic scheme of the United States of America. It considered the relevant precedents in context of Sec. 144 and the principle of proportionality within India as well, including In re the Ramlila Maidan Incident[2], K.S Puttawamy vs. Union of India[3] and Modern Dental College vs. State of Madhya Pradesh[4]. Notably, it imported these principles to  Sec. 144 orders as well, and held that the application of the principle of proportionality implies that restrictions made in context of either of ‘law and order’, ‘public order’ and ‘security of state’ situations, all of which have separate meanings and ramifications should accordingly require commensurate degrees of curtailment of rights of an individual. In other words, “the degree of the restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation”. However, the instant judgment also included a word of caution against the excessive utility of the proportionality doctrine in matters relating to national security, sovereignty and integrity.

Non-Production of Orders under Sec. 144

The non-production of orders is what truly rendered the analysis of the Hon’ble Court more of an ‘academic’ exercise. While the State initially cited privilege as the reason for non-production/publication of the several orders under Sec. 144, they later retracted this contention and produced a few sample orders citing “difficulty” in producing all the orders stating that a lack of certainty regarding which orders are in effect, as the fact situation on the ground was constantly changing and thus, the orders were being modified and withdrawn constantly. The State also argued that courts have limited jurisdiction to interfere with orders under Sec. 144 when questions of national security are involved, as the appropriate authorities were most aware of the situation on the ground and are passing these orders in accordance with the circumstances.

The Hon’ble Court held that the non-production of the Sec. 144 orders (as well as those restricting internet access) was not justified. It observed that the State is obligated to disclose these orders, since that is an essential requirement for anyone seeking to protect their fundamental rights which may be curtailed by such order. Furthermore, natural law requires that no law be passed in a clandestine manner. The Hon’ble Court further held that even where there are concerns such as privilege, national security and countervailing public interest which preclude the government from pro-actively ensuring that Sec. 144 orders are publicly accessible and made available for judicial review, the government must specifically state these concerns on affidavit and justify the same, for the concerned court to be able to decide how to proceed. 

Such non-production of the orders precluded the Hon’ble Court from adjudicating as to whether all the safeguards laid down within Sec. 144, which were culled out in Babulal Parate v. State of Bombay[5], were followed/complied with in the issuance of these orders. The cardinal principle of Sec. 144 laid down in Madhu Limaye v. Sub-Divisional Magistrate[6], wherein it was held that powers under Sec. 144 must be exercised in a manner that permits judicial scrutiny, were blatantly flouted by the government. As such, in context of the orders under Sec. 144 (as well as those restricting communication and internet access), the overall outcome of this was that the State govt. was effectively permitted a free hand to impose such orders within the region. The extent to which the proportionality doctrine was followed (if followed at all) in context of these orders remains unknown, which leads to the inevitable question of whether the fundamental rights of individuals to whom such orders are applicable are even being considered or ‘balanced’ prior to the restrictions being imposed. Without ALL the orders being made available, one can only wonder how long this near-‘Emergency’ situation wherein fundamental rights remain suspended will last within the State.

Internet Restrictions within J&K subsequent to the abrogation of Article 370

The aforesaid petitions and the instant judgment also looked into the orders restricting any/all modes of communication including internet, mobile and fixed line telecommunication services. This part of the present article focuses on the prohibition of internet access/usage within the State. The specific facts requiring such restrictions were unclear, as the orders (and resultantly the matrix of facts forming the basis of these orders) passed in exercise of the powers granted under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 [hereinafter “Suspension Rules”] ,which were notified under the Telegraph Act, were not made available to the Hon’ble Court, citing grounds similar to those precluding the production of orders under Sec. 144 of the CrPC. Thus, the Hon’ble Court was precluded from adjudicating upon the legality of the same. In this backdrop, the State assured the Hon’ble Court that the orders were being constantly reviewed as per the mechanism prescribed in the Suspension Rules. Despite the same, the Hon’ble Court, while noting that the possibility of danger to public safety cannot be ignored, directed that all orders passed under the Suspension Rules that were in effect as on the date of the judgment must be reviewed by the appropriate office in terms of the findings made in the instant judgment, which are summarised hereinafter.

While addressing the role played by technology in everyday life, it was clarified at the very outset itself that the exercise of the rights under Art 19(1)(a) & (g) using the internet as a medium are constitutionally protected, whilst also stating that the right to information is an important facet of the right to freedom of speech and expression. Thereafter, whilst analysing the permissible restrictions to the rights under Art. 19(1), the Hon’ble Court crystallised the ingredients Art. 19(2) as follows –

  • The restriction/action must be sanctioned by law;
  • The proposed action/restriction must be a reasonable restriction and may include cases of complete prohibition;
  • Such restrictions must only be made in order to further the “interests” enumerated within Art. 19(2).

While discussing ‘reasonable restrictions’ under the scheme of the Constitution, the Hon’ble Court delved into the question of balancing of rights and the test of proportionality. It analysed the judgment in Modern Dental College[7], wherein it was reiterated that the principle of proportionality is inherently embedded within the Constitution by way of the ‘reasonable restrictions’ in Art. 19. It was expounded therein that the tension between competing rights of an individual on one hand and the interest/right of another individual or ‘public interest’ of the State on the other hand, necessitated a ‘balancing act’ to determine what is ‘reasonable’ in context of the restrictions imposed. This balancing act must be carried out on the anvil of the principle of proportionality. It was stated inter alia that the limitation/curtailment of a constitutional right is only deemed constitutional and reasonable as long as it is proportional. However, the approach to applying the principle of proportionality that was laid down in the said judgment was later revised in the Aadhaar Judgment.[8] It was  held therein that the proportionality test laid out in Modern Dental College, must be approached and carried out in accordance with the parameters laid down by the legal scholar David Bilchitz, who advocates for a ‘sensible’ rather than a ‘strong’ approach to the necessity test, which calls for a process of reasoning that is tailored to ensure the presence of a strong nexus between the measures imposed and the objective that they seek to achieve. Most notably, Bilchitz wrote that the very purpose of the ‘necessity enquiry’ is to offer an “explicit consideration of the relationship between means, objectives and rights”. In the Aadhaar Judgment, the dissenting opinion of the Hon’ble D.Y. Chandrachud, J. also made reference to the four-prong proportionality test laid down by the Hon’ble S.K. Kaul, J. in his concurring opinion in the Privacy Judgment[9]

(i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic society for a legitimate aim;

(iii) The extent of such interference must be proportionate to the need for such interference;

(iv) There must be procedural guarantees against abuse of such interference.

(Emphasis Added)

This test assumes particular significance in context of the finding and the reliefs moulded in the instant judgment. These aforementioned findings were approved by the Hon’ble Court in the instant judgment, who then looked towards the restrictions imposed on the freedom of speech and expression over the internet through the orders under the Suspension Rules. As stated earlier, in the absence of the orders and specific facts, the Hon’ble Court was unable to adjudicate as to whether these orders were constitutional or not. However, the Hon’ble Court moulded relief accordingly, as it was pointed out that the present matter was also about future executive action and may serve to caution the government.

In order to carry out the analysis of the orders, the Hon’ble Court acknowledged the troubled history of J&K and stated that the geopolitical struggle that has embroiled the State and the region cannot be underplayed. In lieu of specific facts, the State submitted that the ‘war on terrorism’ requires imposition of such restrictions that will nip the problem of terrorism in the bud. The traditional conceptions of warfare have undergone an immense change and have been replaced by a new term called ‘war on terror’ and cannot be equated to a law and order situation. In this regard, the State had also submitted that social media could be used as a means to communicate in order to incite or aid violence, cross-border terrorism and infiltration as well. The Hon’ble Court, referring to academic publications also acknowledged that modern terrorism relies on and is enabled to a great degree by means of the internet.

The Hon’ble Court thereafter held that all order under the Suspension Rules were to be reasoned orders and must state why the measures imposed were necessary and must set out the ‘unavoidable circumstances’ that warranted such measures. These requirements were also extended to every ‘review’ or ‘confirmation’ process prescribed under the Suspension Rules. It also noted that the Review Committee set up under Rule 5(5), which was set up to review the orders in terms of the requirements and parameters laid down in Section 5(2) of the Telegraph Act, must do so in line with the principles of proportionality, considering the various degrees/stages of the ‘public emergencies’ which necessitated each such order. This exercise proved particularly significant as the Hon’ble Court read in critical mandatory procedural safeguards that were not explicitly provided for within the Suspension Rules:

  • Publication of orders: Even though the Suspension Rules did not explicitly provide for publication of the orders, natural justice and settled law require that any law or order which requires compliance of an individual must be notified directly and reliably, even where the parent statute or rules are silent.
  • Judicial Review of orders: The option of judicial review of an order issued under the Suspension Rules is always available and the same cannot be rendered ineffective, even though the Suspension Rules do not explicitly provide for the same.
  • Weekly review of orders: The principle of proportionality requires that orders under the Suspension Rules cannot be passed for an indefinite term. The Review Committees appointed under the Suspension Rules were thus directed to review each order every 7 days, keeping in mind the changing fact scenario.

This exercise has already proved to be quite useful, as orders passed under the Suspension Rules subsequent to the instant judgment appear to be published, as also to contain references to the facts on the ground which call for internet restrictions. However, these orders do not seem to state which alternate means/measures were considered by the State and nor do they mention why these alternate means would not suffice in dealing with the situation at hand. Even, in the instant judgment, there was no mention of which alternate measures the State had explored and deemed inefficacious/ineffective prior to the complete shutdown of internet services. The Hon’ble Court had also mentioned that the State should have attempted to determine the feasibility of measures to block/restrict access to and use of social media websites/platforms while allowing access to the internet in general. Where the specific facts on the ground cannot be mentioned on account of security reasons, a passing reference to the same coupled with a proper analysis, mentioning which alternate means are available and looking into the efficacy/inefficacy of said alternate means can be made, as opposed to simply stating that alternate means have been considered and were deemed ineffective or were not possible. Assuming the State was correct in its submission that simply blocking social media and certain parts of the internet was not possible or was inefficacious in tackling the perceived danger/threat, the how’s and why’s should have been spelt out by the State before the Hon’ble Court (if not within the orders themselves) in consonance with the principles of proportionality.

One could argue that the need for the State to carry out this analysis was much greater in context of the instant judgment, as it is not easy to overlook the fact that one of the largest and longest internet shutdowns in history, which curbed the fundamental rights of millions, could not be judicially reviewed on account of the non-production of orders by the State. The words of David Bilchitz, as quoted in the instant judgment, serve as an apt admonition in this regard – “Failure to conduct the necessity enquiry with diligence means that a government can escape scrutiny in relation to both the realisation of the objective and its impact upon fundamental rights.”

[1] The Jammu and Kashmir Reorganisation Act, 2019, which came into effect from 31st October, 2019, reorganised the State of Jammu and Kashmir into: (i) the Union Territory of Jammu and Kashmir with a legislature, and (ii) the Union Territory of Ladakh without a legislature. However, for ease of reference and since the restrictions analysed within this article were imposed prior the re-organisation coming into effect, I shall be referring to Jammu and Kashmir as a ‘State’.

[2] In re Ramlila Maidan Incident; (2012) 5 SCC 1

[3] K.S Puttaswamy vs. Union of India, (2019) 1 SCC 1

[4] Modern Dental College vs. State of Madhya Pradesh, (2016) 7 SCC 353

[5] Babulal Parate v. State of Bombay, AIR 1960 SC 5

[6] Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) 3 SCC 746

[7] Modern Dental College vs. State of Madhya Pradesh; (2016) 7 SCC 353

[8] KS Puttaswamy vs.UoI; (2019) 1 SCC 1

[9] KS Puttaswamy vs.UoI; (2017) 10 SCC 1

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