Here are the Supreme Court’s directions on petitions against J&K lockdown

Tribune News Service
New Delhi, January 10

Here is the “conclusion” of the Supreme Court’s verdict on petitions challenging various restrictions imposed in Jammu and Kashmir after the abrogation of Article 370 of the Constitution.

A three-judge Bench headed by Justice NV Ramana issued the following directions:

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. 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.

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, we direct that the Review   Committee   constituted   under   Rule   2(5)   of   the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).

g. We direct  the  respondent   State/competent  authorities  to 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.

i. In any case, the State/concerned authorities are directed to consider   forthwith   allowing   government   websites, localized/limited e­banking facilities, hospitals services and other   essential   services,   in   those   regions,   wherein   the internet services are not likely to be restored immediately.

j. 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.

k. 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.

l. 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.

m. 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.

n. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.

o. The Respondent State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

The Writ Petitions are disposed of in the afore-stated terms. All pending applications are also accordingly disposed of.

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