Holding

The Court held that the State must produce all orders restricting telecom services and movement, that an indefinite internet shutdown violates Articles 19(1)(a) and 19(1)(g) unless it meets the proportionality test, and that Section 144 orders are valid only if they are reasoned, based on material facts, proportionate, and subject to judicial review.

Summary

The Court examined the Jammu and Kashmir government's orders that shut down mobile, landline, and internet services and imposed Section 144 restrictions on 4‑8‑2019, which the petitioners claimed violated their fundamental rights to free speech, press, and trade. The petitioners sought production of all orders, a declaration that the internet shutdown was unconstitutional, and relief to restore services. The Court held that the State must disclose all orders affecting fundamental rights, that an indefinite internet shutdown is impermissible without satisfying the proportionality test, and that Section 144 orders are valid only if based on material facts, are proportionate, and are subject to judicial review. Accordingly, the Court directed the authorities to publish the orders, to conduct periodic reviews, and to ensure any suspension complies with Articles 19(1)(a), 19(1)(g) and the proportionality principle.

Issues considered

Whether the Government can claim exemption from producing all orders passed under Section 144, Cr.P.C. and the Temporary Suspension of Telecom Services Rules.
Whether freedom of speech, expression and the right to trade via the internet are protected under Articles 19(1)(a) and 19(1)(g) of the Constitution.
Whether the government's prohibition of internet access constitutes a valid restriction under Article 19(2).
Whether the restrictions imposed under Section 144, Cr.P.C. were valid and complied with procedural safeguards.
Whether the petitioner's freedom of the press was violated by the cumulative restrictions.

Legislation cited

Code of Criminal Procedure, 1973s. 134, s. 144
Indian Telegraph Act, 1885s. 5(2)
Information Technology Act, 2000s. 69A

Subjects

internet shutdownfreedom of speechfreedom of pressSection 144proportionalityfundamental rightsjudicial reviewpublic emergencytelecom suspension

Judgment

812 [2020]
SUPREME COURT 1 S.C.R. 812
REPORTS [2020] 1 S.C.R.

A ANURADHA BHASIN
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 1031 of 2019)
B JANUARY 10, 2020
[N. V. RAMANA, R. SUBHASH REDDY
AND B. R. GAVAI, JJ.]
Code of Criminal Procedure, 1973 – s. 144 – Temporary
Suspension of Telecom Services (Public Emergency or Public Service)
C
Rules, 2017 – Exemption from production of orders passed u/s. 144
Cr. P.C. and under the suspension Rules by the Government – Claim
of – Various Authorities passed orders restricting the movement and
communication in the State of Jammu and Kashmir, however, the
orders were not placed before the Court – Held: There are two
D separate types of reasoning that mandate the production of the
orders passed by the authorities – First, Art. 19 of the Constitution
mandate right to information as an important facet of the right to
freedom of speech and expression – A democracy, which is sworn
to transparency and accountability, necessarily mandates the
production of orders as it is right of an individual to know – The
E
State has to act in a responsible manner to uphold Part- III of the
Constitution and not to take away these rights in an implied fashion
or in Casual and Cavalier manner – Second, there is no dispute
that democracy entails free flow of information – There is not only
a normative expectation under the Constitution, but also a
F requirement under natural law, that no law should be passed in a
cladestine manner – When there is a curtailment of fundamental
right as a result of any order passed or action taken by the State
which is not easily available, the State should take a proactive
approach in ensuring that all the relevant orders are placed before
the Court, unless there is some specific ground of privilege or
G
countervailing public interest to be balanced, which must be
specifically claimed by the State on affidavit – In the instant case,
while the State initially claimed privilege, it subsequently dropped
the claim and produced certain sample orders, citing difficulty in
producing all the orders before the Court – This is not a valid ground
H to refuse production of orders before the Court.
812
ANURADHA BHASIN v. UNION OF INDIA & ORS. 813

Constitution of India – Art.19(1)(g) – Freedom of trade and A
commerce through the medium of the internet – Protection u/Art.
19(1)(g) – Held: Internet is a very important tool for trade and
commerce – The globalization of the Indian economy and the rapid
advances in information and technology have opended up vast
business avenues and transformed India as a global IT hub – There
B
are certain trades which are completely dependent on the internet –
Such a right of trade through internet also fosters consumerism
and availability of choice – Therefore, the freedom of trade and
commerce through the medium of the internet is also Constitutionally
protected u/Art. 19(1)(g), subject to the restrictions provided u/Art.
19(6). C
Doctrine/ Principles – Doctrine of proportionality –
Requirement of – Constitution of India – Art. 19(1)(g) – Held: In
the first stage itself, the possible goal of such a measure intended at
imposing restrictions must be determined – It ought to be noted that
such goal must be legitimate – However, before settling on the D
aforesaid measure, the authorities must assess the existence of any
alternative mechanism in furtherance of the aforesaid goal – The
appropriateness of such a measure depends on its implication upon
the fundamental rights and the necessity of such measure – It is
undeniable from the aforesaid holding that only the least restrictive
measure can be resorted to by the State, taking into consideration E
the facts and circumstances – Lastly, since the order has serious
implications on the fundamental rights of the affected parties, the
same should be supported by sufficient material and should be
amenable to judicial review.
Doctrine/ Principles – Doctrine of Proportionality – F
Immediate impact of restrictions upon the realization of the
fundamental rights – Held: To consider the immediate impact of
restrictions upon the realization of the fundamental rights, the
decision maker must prioritize the various factors at stake – Such
attribution of relative importance is what constitutes proportionality G
– It ought to be noted that a decision which curtails fundamental
rights without appropriate justification will be classified as
disproportionate – The concept of proportionality requires a
restriction to be tailored in accordance with the territorial extent of
the restriction, the stage of emergency, nature of urgency, duration
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814 SUPREME COURT REPORTS [2020] 1 S.C.R.

A of such restrictive measure and nature of such restriction – The
triangulation of a restriction requires the consideration of
appropriateness, necessity and the least restrictive measure before
being imposed.
Constitution of India – Indefinite internet shut down by the
B Government – Validity of – Held: One of the gaps must be highlighted
relates to the usage of the word ‘temporary’ in the title of the
‘Temporary Suspension of Telecom Services (Public Emergency or
Public Service) Rules, 2017 ‘– Despite the above, there is no
indication of the maximum duration for which a suspension order
can be in operation – Keeping in view the requirements of
C proportionality, an order suspending the aforesaid services
indefinitely is impermissible – 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 u/r. 2(5) of the Suspension Rules directed to
D conduct a periodic review within seven working days of the previous
review, in terms of the requirements u/r. 2(6).
Words and Phrases – ‘emergency’ – The word ‘emergency’
has various connotations – Everyday emergency, needs to be
distinguished from the type of emergency wherein events which
E involve, or might involve, serious and sometimes widespread risk of
injury or harm to members of the public or the destruction of, or
serious damage to, property – The ‘public emergency’ is required to
be of serious nature, and needs to be determined on a case to case
basis.

F Code of Criminal Procedure, 1973 – s.144 – Various
Authorities passed orders restricting movements u/s. 144 on 4.8.2019
in the State of Jammu and Kashmir – Validity of – Petitioners
contended that there had to be a circumstance on 4.8.2019 showing
that there would be an action which will likely create obstruction,
annoyance or injury to any person or will likely cause disturbance
G of the public tranquility and Government could not have passed
such orders in anticipation or on the basis of apprehension – Held:
The power u/s. 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
H contemplated should be in the nature of an ‘emergency’ and for the
ANURADHA BHASIN v. UNION OF INDIA & ORS. 815

purpose of preventing obstruction and annoyance or injury to any A
person lawfully employed – While passing orders u/s.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 – In the instant case, it
was contended by the petitioners that the majority of the
B
geographical area of the erstwhile State of Jammu and Kashmir
was placed under orders passed u/s. 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, that it is an issue of national security
and cross border terrorism – Although, the restrictions were removed
on 27.9.2019, thereby rendering the present exercise into a virtually C
academic one, however, the non-compliance of law by the State
cannot be ignored – Hence, the authorities directed to follow the
principles laid down by the Supreme court and upheld the rules of
law.
Code of Criminal Procedure, 1973 – Order passed u/s. 144 – D
Judicial review – Scope of – Held: The existence of the power of
judicial review is undeniable – It is for the Magistrate and the State
to make an informed judgment 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 E
this power – This will enable judicial scrutiny and a verification of
whether there are sufficient facts to justify the invocation of this
power.
Constitution of India – Freedom of Press – Restriction on –
The petitioner alleged that the cumulative effect of various F
restrictions on 4.8.2019 in the State of Jammu and Kashmir, such as
the imposition of s.144 Cr. P.C. and restriction on internet and
communication, has indirectly affected the freedom of the press in
the valley – The contention of petitioner rests on the chilling effects
alleged to be produced by the imposition of restrictions – Held: G
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
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816 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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 – On the other hand, there
B
were other newspapers which were running during the aforesaid
time period – In view of these facts, and considering that the
aforesaid petitioner has now resumed publication, it is not fit to
indulge more in the issue than to state that responsible Governments
are required to respect the freedom of the press at all times.
C Doctrine/ Principles – Principle of chilling effect – discussed.
Disposing of the writ petitions, the Court
HELD :
PRODUCTION OF ORDERS
D
1. There are two separate types of reasoning that mandate
this Court to order production of the orders passed by the
authorities in this case. First, Article 19 of the Constitution has
been interpreted to mandate right to information as an important
facet of the right to freedom of speech and expression. A
E democracy, which is sworn to transparency and accountability,
necessarily mandates the production of orders as it is the right of
an individual to know. Moreover, fundamental rights itself connote
a qualitative requirement wherein the State has to act in a
responsible manner to uphold Part III of the Constitution and
F not to take away these rights in an implied fashion or in casual
and cavalier manner. [Para 15][847-B-C]
2. Second, there is no dispute that democracy entails free
flow of information. There is not only a normative expectation
under the Constitution, but also a requirement under natural law,
that no law should be passed in a clandestine manner. [Para
G
16][847-D]
3. As a general principle, on a challenge being made
regarding the curtailment of fundamental rights as a result of any
order passed or action taken by the State which is not easily
available, the State should take a proactive approach in ensuring
H that all the relevant orders are placed before the Court, unless
ANURADHA BHASIN v. UNION OF INDIA & ORS. 817

there is some specific ground of privilege or countervailing public A
interest to be balanced, which must be specifically claimed by
the State on affidavit. In such cases, the Court could determine
whether, in the facts and circumstances, the privilege or public
interest claim of the State overrides the interests of the Petitioner.
Such portion of the order can be redacted or such material can
B
be claimed as privileged, if the State justifies such redaction on
the grounds, as allowed under the law. [Para 17][847-F-G; 848-
A]
4. In the present case, while the State initially claimed
privilege, it subsequently dropped the claim and produced certain
sample orders, citing difficulty in producing all the orders before C
this Court. In the opinion of this Court, this is not a valid ground
to refuse production of orders before the Court. [Para 18][848-
B]
FUNDAMENTAL RIGHTS UNDER PART III AND
RESTRICTIONS THEREOF D

5. The internet is also a very important tool for trade and
commerce. The globalization of the Indian economy and the rapid
advances in information and technology have opened up vast
business avenues and transformed India as a global IT hub. There
is no doubt that there are certain trades which are completely E
dependent on the internet. Such a right of trade through internet
also fosters consumerism and availability of choice. Therefore,
the freedom of trade and commerce through the medium of the
internet is also constitutionally protected under Article 19(1)(g),
subject to the restrictions provided under Article 19(6). [Para F
27][850-D-E]
6. It has been argued by the Petitioners that the restrictions
under Article 19 of the Constitution cannot mean complete
prohibition. In this context, the aforesaid contention cannot be
sustained in light of a number of judgments of this Court wherein G
the restriction has also been held to include complete prohibition
in appropriate cases. [Para 32][851-F]
7. The study of various case laws points to three
propositions which emerge with respect to Article 19(2) of the
Constitution. (i) Restriction on free speech and expression may
H
818 SUPREME COURT REPORTS [2020] 1 S.C.R.

A include cases of prohibition. (ii) There should not be excessive
burden on free speech even if a complete prohibition is imposed,
and the government has to justify imposition of such prohibition
and explain as to why lesser alternatives would be inadequate.
(iii) Whether a restriction amounts to a complete prohibition is a
question of fact, which is required to be determined by the Court
B
with regard to the facts and circumstances of each case. [Para
33][852-A-C]
8. It goes without saying that the Government is entitled
to restrict the freedom of speech and expression guaranteed
under Article 19(1)(a) if the need be so, in compliance with the
C requirements under Article 19(2). It is in this context, while the
nation is facing such adversity, an abrasive statement with
imminent threat may be restricted, if the same impinges upon
sovereignty and integrity of India. The question is one of extent
rather than the existence of the power to restrict. [Para 46][856-
D D]
9. The doctrine of proportionality is not foreign to the Indian
Constitution, considering the use of the word ‘reasonable’ under
Article 19 of the Constitution. In a catena of judgments, this Court
has held “reasonable restrictions” are indispensable for the
E realisation of freedoms enshrined under Article 19, as they are
what ensure that enjoyment of rights is not arbitrary or excessive,
so as to affect public interest. [Para 53][858-C-D]
10. The requirements of the doctrine of proportionality
which must be followed by the authorities before passing any order
F intending on restricting fundamental rights of individuals. In the
first stage itself, the possible goal of such a measure intended at
imposing restrictions must be determined. It ought to be noted
that such goal must be legitimate. However, before settling on
the aforesaid measure, the authorities must assess the existence
of any alternative mechanism in furtherance of the aforesaid goal.
G The appropriateness of such a measure depends on its implication
upon the fundamental rights and the necessity of such measure.
It is undeniable from the aforesaid holding that only the least
restrictive measure can be resorted to by the State, taking into
consideration the facts and circumstances. Lastly, since the order
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 819

has serious implications on the fundamental rights of the affected A
parties, the same should be supported by sufficient material and
should be amenable to judicial review. [Para 70][870-E-G]
11. The degree of 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. [Para 71][871- B
A]
12. To consider the immediate impact of restrictions upon
the realization of the fundamental rights, the decision maker must
prioritize the various factors at stake. Such attribution of relative
importance is what constitutes proportionality. It ought to be noted C
that a decision which curtails fundamental rights without
appropriate justification will be classified as disproportionate. The
concept of proportionality requires a restriction to be tailored in
accordance with the territorial extent of the restriction, the stage
of emergency, nature of urgency, duration of such restrictive
measure and nature of such restriction. The triangulation of a D
restriction requires the consideration of appropriateness,
necessity and the least restrictive measure before being imposed.
[Para 72][871-B-C]
13. There is ample merit in the contention of the
Government that the internet could be used to propagate E
terrorism thereby challenging the sovereignty and integrity of
India. This Court would only observe that achievement of peace
and tranquillity within the erstwhile State of Jammu and Kashmir
requires a multifaceted approach without excessively burdening
the freedom of speech. In this regard the Government is required F
to consider various options under Article 19(2) of the
Constitution, so that the brunt of exigencies is decimated in a
manner which burdens freedom of speech in a minimalist manner.
[Para 76][871-G-H; 872-A]
INTERNET SHUTDOWN G
14. The complete broad suspension of telecom services,
be it the Internet or otherwise, being a drastic measure, must be
considered by the State only if ‘necessary’ and ‘unavoidable’. In
furtherance of the same, the State must assess the existence of
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820 SUPREME COURT REPORTS [2020] 1 S.C.R.

A an alternate less intrusive remedy. Having said so, it is noted
that the Temporary Suspension of Telecom Services (Public
Emergency or Public Service) Rules, 2017 have certain gaps,
which are required to be considered by the legislature. [Para
99][881-C]
B 15. One of the gaps which must be highlighted relates to
the usage of the word “temporary” in the title of the Suspension
Rules. Despite the above, there is no indication of the maximum
duration for which a suspension order can be in operation.
Keeping in mind the requirements of proportionality expounded
in the earlier section of the judgment, this Court is of the opinion
C that an order suspending the aforesaid services indefinitely is
impermissible. In this context, it is necessary to lay down some
procedural safeguard till the aforesaid deficiency is cured by the
legislature to ensure that the exercise of power under the
Suspension Rules is not disproportionate. Therefore, it is directed
D 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). The Review Committee must therefore not only
look into the question of whether the restrictions are still in
compliance with the requirements of Section 5(2) of the Telegraph
E Act, but must also look into the question of whether the orders
are still proportionate, keeping in mind the constitutional
consequences of the same. It is clarified that looking to the fact
that the restrictions contemplated under the Suspension Rules
are temporary in nature, the same must not be allowed to extend
F beyond that time period which is necessary. [Para 100][881-D-G]
RESTRICTIONS UNDER SECTION 144 OF CRPC
16. The safeguards in Section 144, Cr.P.C. are discussed
below and deserve close scrutiny.

G (a) Prior Inquiry before issuing 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,
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 821

annoyance or injury to any person lawfully employed A
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 B
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 C
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 D
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 E
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 F
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.
G
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.
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822 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (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
B
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]
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
D 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
E 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
F 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
G 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]
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ANURADHA BHASIN v. UNION OF INDIA & ORS. 823

19. The existence of the power of judicial review is A
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
B
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. C
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 D
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 E
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] 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 G
also about the future, where this Court has to caution the
Government. Hence, the authorities directed to follow the

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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
B 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.
C (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
D 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.
E 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
F
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
G 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
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ANURADHA BHASIN v. UNION OF INDIA & ORS. 825

statute. In this regard, the chilling effect was restricted to the A
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
B
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 C
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 D
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 E
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 F
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 G
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]

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
B 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
C 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
D 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 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
F 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).
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 A
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]
B
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 C
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; D
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 E
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; F
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 G
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
H
828 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR
971; State of Karnataka v. Dr. Praveen Bhai Thogadia,
(2004) 4 SCC 684 : [2004] 3 SCR 652 – relied on.
Secretary, Ministry of Information & Broadcasting
Government of India v. Cricket Association of Bengal,
B (1995) 2 SCC 161 : [1995] 1 SCR 1036; Shreya Singhal
v. Union of India, (2015) 5 SCC 1 : [2015] 5 SCR 963;
Indian Express v. Union of India, (1985) 1 SCC 641 :
[1985] 2 SCR 287; Odyssey Communications Pvt. Ltd.
v. Lokvidayan Sanghatana, (1988) 3 SCC 410 : [1988]
1 Suppl. SCR 486; Madhya Bharat Cotton Association
C Ltd. v. Union of India, AIR 1954 SC 634; Narendra
Kumar v. Union of India, [1960] 2 SCR 375; State of
Maharashtra v. Himmatbhai Narbheram Rao, [1969] 2
SCR 392; Sushila Saw Mill v. State of Orissa, (1995) 5
SCC 615 : [1995] 2 Suppl. SCR 426; Pratap Pharma
D (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 : [1997]
3 SCR 492; Dharam Dutt v. Union of India, (2004) 1
SCC 712 : [2003] 6 Suppl. SCR 151; State of Gujarat
v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC
534 : [2005] 4 Suppl. SCR 582; Minerva Mills Ltd. v.
Union of India, (1980) 2 SCC 591 : [1981] 1 SCR 206;
E Sanjeev Coke Manufacturing Company v. M/s Bharat
Coking Coal Ltd., (1983) 1 SCC 147 : [1983] 1 SCR
1000; Maneka Gandhi v. Union of India, (1978) 1 SCC
248 : [1978] 2 SCR 621; State of Bihar v. Kamla Kant
Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181;
F Channing Arnold v. The Emperor, (1914) 16 Bom LR
544; Bennett Coleman v. Union of India, (1972) 2 SCC
788 : [1973] 2 SCR 757; Sakal Papers (P) Ltd. v. Union
of India, [1962] 3 SCR 842; A.K Gopalan v. State of
Madras, AIR 1950 SC 27 : [1950] SCR 88; Rustom
Cavasjee Cooper v. Union of India, (1970) 1 SCC 248
G : [1970] 3 SCR 530; National Investigation Agency v.
Zahoor Ahmad Shah Watali, (2019) 5 SCC 1– referred
to.

H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 829

Ex parte Vallandigham, 28 F. Cas. 874 (1863)]; A
Abraham v. United States, 250 U.S. 616 (1919); Dennis
v. United States, 341 US 494 (1951); Brandenburg v.
Ohio, 395 US 444 (1969); R v. Goldsmith, [1983] 1 WLR
151, 155; Kwok Wing Hang and Ors. v. Chief Executive
in Council, [2019] HKCFI 2820; Weiman v. Updgraff,
B
344 U.S. 183; Laird v. Tantum, 408 U.S. 1 (1972);
Clapper v. Amnesty Int’l, USA, 568 U.S. 113 (2013)];
Public Committee Against Torture in Israel v. Israel, 38
I.L.M. 1471 (1999) – referred to.
Lon L. Fuller, Positivism and Fidelity to Law: A Reply to
Professor Hart, The Harvard Law Review, 71(4), 630, C
651 [February, 1958]; Gregory S. McNeal, Cyber
Embargo: Countering the Internet Jihad, 39 Case W.
Res. J. Int’l L. 789 (2007); Kai Möller, Constructing
the Proportionality Test: An Emerging Global
Conversation, Reasoning Rights Comparative Judicial D
Engagement (Hart Publishing, 2014); Robert Alexy, A
Theory of Constitutional Rights (Oxford, Oxford
University Press, (2002) 47 – referred to.
Case Law Reference
[2017] 10 SCR 569 relied on Para 8 E

(2019) 5 SCC 1 referred to Para 8
[1960] SCR 605 relied on Para 8
[1971] 2 SCR 711 relied on Para 8
F
[2011] 8 SCR 725 relied on Para 14
[1995] 1 SCR 1036 referred to Para 25
[2015] 5 SCR 963 referred to Para 25
[1985] 2 SCR 287 referred to Para 26
G
[1988] 1 Suppl. SCR 486 referred to Para 26
AIR 1954 SC 634 referred to Para 32

H
830 SUPREME COURT REPORTS [2020] 1 S.C.R.

A [1960] 2 SCR 375 referred to Para 32
[1969] 2 SCR 392 referred to Para 32
[1995] 2 Suppl. SCR 426 referred to Para 32
[1997] 3 SCR 492 referred to Para 32
B [2003] 6 Suppl. SCR 151 referred to Para 32
[2005] 4 Suppl. SCR 582 referred to Para 33
[1981] 1 SCR 206 referred to Para 34
[1983] 1 SCR 1000 referred to Para 34
C
[1950] SCR 759 relied on Para 53
[1952] SCR 597 relied on Para 53
[1970] 1 SCR 156 relied on Para 53
[2000] 4 Suppl. SCR 693 relied on Para 53
D
[1970] 3 SCR 181 relied on Para 53
[1982] 1 SCR 1137 relied on Para 53
(2016) 7 SCC 353 relied on Para 54
[1986] 1 SCR 103 (Can) SC relied on Para 57
E
(2019) 1 SCC 1 relied on Para 66
[1978] 2 SCR 621 referred to Para 79
[1976] 2 SCR 1060 relied on Para 90

F [1996] 10 Suppl. SCR 321 relied on Para 91
[1987] 1 SCR 1054 relied on Para 96
[1970] 3 SCR 181 referred to Para 110
[1978] 2 SCR 419 relied on Para 112
G [1982] 1 SCR 1077 relied on Para 113
[1984] 1 SCR 447 relied on Para 114

H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 831

[2012] 4 SCR 971 relied on Para 115 A
[1966] SCR 709 relied on Para 120
[2004] 3 SCR 652 relied on Para 131
[1973] 2 SCR 757 referred to Para 143
[1962] 3 SCR 842 referred to Para 143 B
[1950] SCR 88 referred to Para 149
[1970] 3 SCR 530 referred to Para 149
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1031 of 2019. C
[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
With
Writ Petition (C) No. 1164 of 2019.
K.K. Venugopal, AG, Tushar Mehta, SG, K.M. Nataraj, Vikramjit D
Banerjee, ASGs, Kapil Sibal, Huzefa Ahmadi, Dushyant Dave,
Ms. Meenakshi Arora, Sr. Advs., Ms. Vrinda Grover, Ms. Sumita
Hazarika, Nizam Pasha, Shadan Farasat, Ms. Jahnavi Sindhu, Ms. Shruti
Narayan, Siddharth, Bhakat Gupta, Ms. Astha Sharma, Apar Gupta, Amjid
Maqbool, Ms. Vrinda Bhandari, Abhishek Manchanda, Ms. Kajal Dalal, E
Ms. Devdutta Mukhopadhyay, Ms. Deepali Dwivedi, Soayib Quarashi,
Ms. Rashmi Singh, Dhanajay Sud, Ms. Rahilla & Yasmin, Fuzail Ahmad
Ayyubi, Ankur Talwar, Rajat Nair, Kanu Agrawal, Ayush Anand,
Ms. Anindita Barman, Shantnu Sharma, Bhuwan Kapoor, B. V. Balaram
Das, Sudhakar Kulwant, Ms. Shashi Juneja, Satyajeet Kumar, Debasis
Misra, Kundan Kumar Mishra, R.C. Paul Kanakraj, Dr. Sanatan Ray F
Choudhari, Jagdev. Ms. Pareena Swarup, M.S. Vinayak, Dr. Samsuddin
Khan Choudhary, Ms. Meera Bhatia, Rajnish Kumar, Ms. Alpana Sharma,
Manav, Parvez Bashista, Dr. Sunil Kumar, Pradeep Kumar Koushik,
R. Sharath, Shashindra Tripathi, Narender Kumar Sharma, Jay Prakash
Somani, Ms. Harvinder Chowdhury, Dr. Nishesh Sharma, Sandip Gorsi, G
Sahitya Singh Srivastava, Ms. Ekta Kalra, Anil Kumar, Anshuman Ashok,
Advs. for the appearing parties.

H
832 SUPREME COURT REPORTS [2020] 1 S.C.R.

A JUDGMENT
TABLE OF CONTENTS
Introduction A

Contentions B
B
Issues C

Production of Orders D

Fundamental Rights under Part III and restrictions E
thereof
C
Internet Shutdown F

Restrictions under Section 144, Cr.P.C. G

Freedom of the Press H

D Conclusion I

N. V. RAMANA, J.
A. INTRODUCTION
“It was the best of times, it was the worst of times,
E it was the age of wisdom, it was the age of foolishness,
it was the epoch of belief, it was the epoch of incredulity,
it was the season of Light, it was the season of Darkness,
it was the spring of hope, it was the winter of despair,
we had everything before us, we had nothing before us,
F we were all going direct to Heaven, we were all going direct
the other way-
in short, the period was so far like the present period, that
some of its noisiest authorities insisted on its being received,
for good or for evil, in the superlative degree of comparison
G only.”
-Charles Dickens in A Tale of Two Cities
1. Although cherished in our heart as a “Paradise on Earth”, the
history of this beautiful land is etched with violence and militancy. While
the mountains of Himalayas spell tranquillity, yet blood is shed every
H day. In this land of inherent contradictions, these petitions add to the list,
ANURADHA BHASIN v. UNION OF INDIA & ORS. 833
[N. V. RAMANA, J.]

wherein two sides have shown two different pictures which are A
diametrically opposite and factually irreconcilable.In this context, this
Court’s job is compounded by the magnitude of the task before it. It
goes without saying that this Court will not delve into the political propriety
of the decision taken herein, which is best left for democratic forces to
act on. Our limited scope is to strike a balance between the liberty and
security concerns so that the right to life is secured and enjoyed in the B
best possible manner.
2. Liberty and security have always been at loggerheads. The
question before us, simply put, is what do we need more, liberty or
security? Although the choice is seemingly challenging, we need to clear
ourselves from the platitude of rhetoric and provide a meaningful answer C
so that every citizen has adequate security and sufficient liberty. The
pendulum of preference should not swing in either extreme direction so
that one preference compromises the other. It is not our forte to answer
whether it is better to be free than secure or be secure rather than free.
However, we are here only to ensure that citizens are provided all the D
rights and liberty to the highest extent in a given situation whileensuring
security at the same time.
3. The genesis of the issue starts with the Security Advisory issued
by the Civil Secretariat, Home Department, Government of Jammu and
Kashmir, advising the tourists and the Amarnath Yatris to curtail their E
stay and make arrangements for their return in the interest of safety and
security. Subsequently, educational institutions and offices were ordered
to remain shut until further orders. On 04.08.2019, mobile phone networks,
internet services, landline connectivity were all discontinued in the valley,
with restrictions on movement also being imposed in some areas.
F
4. On 05.08.2019, Constitutional Order 272 was issued by the
President, applying all provisions of the Constitution of India to the State
of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its
application to the State of Jammu and Kashmir. In light of the prevailing
circumstances, on the same day, the District Magistrates, apprehending
breach of peace and tranquillity, imposed restrictions on movement and G
public gatherings by virtue of powers vested under Section 144, Cr.P.C.
Due to the aforesaid restrictions, the Petitioner in W.P. (C) No. 1031 of
2019 claims that the movement of journalists was severely restricted
and on 05.08.2019, the Kashmir Times Srinagar Edition could not be
distributed. The Petitioner has submitted that since 06.08.2019, she has
H
834 SUPREME COURT REPORTS [2020] 1 S.C.R.

A been unable to publish the Srinagar edition of Kashmir Times pursuant
to the aforesaid restrictions.
5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin
and Mr. Ghulam Nabi Azad) approached this Court under Article 32 of
the Constitution seeking issuance of an appropriate writ for setting aside
B or quashing any and all order(s), notification(s), direction(s) and/or
circular(s) issued by the Respondents under which any/all modes of
communication including internet, mobile and fixed line telecommunication
services have been shutdown or suspended or in anyway made
inaccessible or unavailable in any locality. Further, the Petitioners sought
the issuance of an appropriate writ or direction directing Respondents to
C immediately restore all modes of communication including mobile, internet
and landline services throughout Jammu and Kashmir in order to provide
an enabling environment for the media to practice its profession.
Moreover, the Petitioner in W.P. (C) No. 1031 of 2019 also pleaded to
pass any appropriate writ or direction directing the Respondents to take
D necessary steps for ensuring free and safe movement of reporters and
journalists and other media personnel. Lastly, she also pleaded for the
framing of guidelines ensuring that the rights and means of media
personnel to report and publish news is not unreasonably curtailed.
6. Moreover, Mr. Ghulam Nabi Azad (Petitioner in W.P. (C) No.
E 1164 of 2019), alleges that he was stopped from travelling to his
constituency in Jammu and Kashmir. In this context, he alleges that due
to the aforesaid restrictions, he is not able to communicate with the
people of his constituency.
7. When W.P. (C) No. 1164 of 2019 (by Mr. Ghulam Nabi Azad),
F was listed before a Co-ordinate Bench of this Court on 16.09.2019, the
following order was passed:
“Issue notice.
We permit the petitioner to go to Srinagar and visit the following
districts, subject to restrictions, if any:-
G
(i) Srinagar, (ii) Anantnag, (iii) Baramulla and (iv) Jammu.
The petitioner has undertaken before the Court on his own volition
that he will not indulge in any political rally or political activity
during his visit. The visit will solely be concerned with making an
assessment of the impact of the present situation on the life of the
H daily wage earners, if any.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 835
[N. V. RAMANA, J.]

So far as prayers (2) and (3) of the writ petition are concerned, A
the State as well as, the Union of India will respond within two
weeks hence.”
8. When W.P. (C) No. 1031 of 2019, was listed on 16.08.2019,
the matter was ordered to be tagged along with W.P. (C) No. 1013 of
2019 (five-Judge Bench) and was later de-tagged. On 16.09.2019, a B
Co-ordinate Bench of this Court ordered the following:
“The State of Jammu & Kashmir, keeping in mind the national
interest and internal security, shall make all endeavours to ensure
that normal life is restored in Kashmir; people have access to
healthcare facilities and schools, colleges and other educational C
institutions and public transport functions and operates normally.
All forms of communication, subject to overriding consideration
of national security, shall be normalized, if required on a selective
basis, particularly for healthcare facilities.”
When the said writ petition was listed before this Bench on D
01.10.2019, in light of expediency, this Bench directed that no further
intervention applications shall be entertained. However, liberty was
granted to file additional documents in support of applications for
intervention. When the matter came up for hearing on the next date on
16.10.2019, the following order was passed:
E
“When these matters came up for hearing today, learned Solicitor
General appearing for the Union of India made a submission that
after filing the counter affidavit in these matters, certain further
developments have taken place and some of the restrictions
imposed have been relaxed, particularly with reference to mobile
connectivity as well as the landlines services etc. and, therefore, F
he wants to file another additional affidavit indicating the steps
taken by the Government about relaxation of some restrictions.
He also made a request to accommodate him for a week only.
During the course of hearing, we are informed by the learned
Senior counsel appearing for the petitioners that the orders which G
are issued by the authorities relating to the restrictions imposed
have not been provided to them so far.
When we asked the learned Solicitor General about the non- supply
of orders issued by the authorities relating to the restrictions
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836 SUPREME COURT REPORTS [2020] 1 S.C.R.

A imposed, particularly with respect to the cell phone services as
well as Section 144 proceedings, he claims privilege over those
orders. He, however, states that those orders can be produced
before this Court.
However, if for any reason, learned Solicitor General does not
B want to give a copy of those orders to the petitioners, we request
him to file an affidavit indicating the reasons for claiming such
privilege.”
On 24.10.2019, after the aforesaid orders were placed on record
and pleadings were complete, the matter was listed for final disposal on
C 05.11.2019. Taking into account the concerns expressed by the parties,
we extensively heard the counsel for both sides, as well as all the
Intervenors on 05.11.2019, 06.11.2019, 07.11.2019, 14.11.2019,
19.11.2019, 21.11.2019, 26.11.2019 and 27.11.2019, and considered all
the submissions made and documents placed before us.
D B. CONTENTIONS
Ms. Vrinda Grover, Counsel for the Petitioner in W.P. (C)
No. 1031 of 2019
• It was contended that the petitioner, being executive editor of
one of the major newspapers, was not able to function post
E 05.08.2019, due to various restrictions imposed on the press.
• Print media came to a grinding halt due to non-availability of
internet services, which in her view, is absolutely essential for
the modern press.
• Curtailment of the internet, is a restriction on the right to free
F
speech, should be tested on the basis of reasonableness and
proportionality.
• The procedure that is to be followed for restricting Internet
services is provided under the Temporary Suspension of
Telecom Services (Public Emergency or Public Service) Rules,
G 2017 [hereinafter “Suspension Rules”], which were notified
under the Telegraph Act. The Suspension Rules indicate that
the restriction imposed was contemplated to be of a temporary
nature.

H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 837
[N. V. RAMANA, J.]

• The orders passed under the Suspension Rules placed on record A
by the State of Jammu and Kashmir, regarding the restrictions
pertaining to the Internet and phones (either mobile or telephone
were ex facie perverse and suffered from non-application of
mind.
• Learned counsel submitted that the orders were not in B
compliance with the procedure prescribed under the Suspension
Rules. Further, the orders did not provide any reasoning as to
the necessity of the restrictions, as is required under the
Suspension Rules.
• Lastly, the learned counsel contended that the orders are based C
on an apprehension of likelihood that there would be danger to
a law and order situation. Public order is not the same as law
and order, and the situation at the time when the orders were
passed did not warrant the passing of the orders resulting in
restrictions.
D
Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P.
(C) No. 1164 of 2019
• Learned senior counsel submitted that the orders of the
authorities had to be produced before the Court, and cannot be
the subject of privilege, as claimed by the State. E
• It was submitted that the conduct of the State, in producing
documents and status reports during argumentation, was
improper, as it did not allow the Petitioners with sufficient
opportunity to rebut the same.
• Learned senior counsel submitted that the Union of India can F
declare an emergency only in certain limited situations. Neither
any ‘internal disturbance’ nor any ‘external aggression’ has
been shown in the present case for the imposition of restrictions
which are akin to the declaration of Emergency.
• With respect to the orders restricting movement passed under G
Section 144, Cr.P.C., the learned senior counsel contended that
such an order is made to deal with a ‘law and order’ situation,
but the orders do not indicate any existing law and order issue,
or apprehension thereof.
H
838 SUPREME COURT REPORTS [2020] 1 S.C.R.

A • Learned senior counsel pointed out that the order of the
Magistrate under Section 144, Cr.P.C. cannot be passed to the
public generally, and must be specifically against the people or
the group which is apprehended to disturb the peace. It is
necessary for the State to identify the persons causing the
problem, and an entire State cannot be brought to a halt.
B
Moreover, he has contended that there was no application of
mind before passing those orders.
• While submitting that it could be assumed that there was some
material available for the purpose of passing the orders under
Section 144, Cr.P.C., the question which then arises is how the
C State balances the rights of individuals.
• The learned senior counsel, with respect to the communications’
restrictions, submitted that the State had not indicated as to the
necessity to block landline services. He further submitted that
the communications/Internet restrictions which were imposed
D under the Indian Telegraph Act, 1885 [hereinafter “Telegraph
Act”] needs to follow the provisions of Section 5 of the
Telegraph Act, in line with Article 19 of the Constitution. While
there can be some restrictions, there can be no blanket orders,
as it would amount to a complete ban. Instead, a distinction
E should be drawn while imposing restrictions on social media/
mass communication and the general internet. The least
restrictive option must be put in place, and the State should
have taken preventive or protective measures. Ultimately, the
State needs to balance the safety of the people with their lawful
exercise of their fundamental rights.
F
• On internet restrictions, the learned senior counsel submitted
that such restrictions not only impact the right to free speech
of individuals but also impinges on their right to trade. Therefore,
a less restrictive measure, such as restricting only social media
websites like Facebook and Whatsapp, should and could have
G been passed, as has been donein India while prohibiting human
trafficking and child pornography websites. The learned senior
counsel pointed to orders passed in Bihar, and in Jammu and
Kashmir in 2017, restricting only social media websites, and
submitted that the same could have been followed in this case
H as well.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 839
[N. V. RAMANA, J.]

• Indicating that the State can impose restrictions, the learned A
senior counsel focussed on the question of the “least restrictive
measure” that can be passed. The learned senior counsel
submitted that while imposing restrictions, the rights of
individuals need to be balanced against the duty of the State to
ensure security. The State must ensure that measures are in
B
place that allows people to continue with their life, such as
public transportation for work and schools, to facilitate business,
etc.
Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A.
No. 139141 of 2019 in W.P. (C) No. 1031 of 2019
C
• The learned senior counsel emphasized on the term
“reasonable”, as used in Article 19(2) of the Constitution, and
submitted that the restrictions on the freedom of speech should
be reasonable as mandated under Article 19 of the Constitution.
These restrictions need to be tested on the anvil of the test of
proportionality. D

• Learned senior counsel submitted that Section 144, Cr.P.C.
orders should be based on some objective material and not
merely on conjectures.
Mr. Dushyant Dave, Senior Counsel for the Intervenor in E
I.A. No. 139555 in W.P. (C) No. 1031 of 2019
• Learned senior counsel attempted to highlight that the issue of
balancing the measures necessary for ensuring national security
or curbing terrorism, with the rights of the citizens, is an
endeavour that is not unique, and has been undertaken by Courts F
in various jurisdictions. Learned senior counsel relied on the
judgment of the Supreme Court of Israel concerning the
Legality of the General Security Service’s Interrogation
Methods in Public Committee Against Torture in Israel v.
Israel, 38 I.L.M. 1471 (1999) relating to the question of
whether torture during interrogation of an alleged terrorist was G
permissible. In that case, the Israeli Supreme Court held that
such acts were unconstitutional, and could not be justified in
light of the freedoms and liberties afforded to the citizens of
Israel.
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840 SUPREME COURT REPORTS [2020] 1 S.C.R.

A • Learned senior counsel drew parallels between the situation
faced by the Israeli Supreme Court in the abovementioned case,
and that before this Court, wherein, according to the learned
senior counsel, the State is attempting to justify the restrictions
due to the circumstances prevailing in the State of Jammu and
Kashmir. The learned senior counsel submitted that such a
B
justification merits rejection as it would amount to granting too
much power to the State to impose broad restrictions on
fundamental rights in varied situations. It would amount to
individual liberty being subsumed by social control.
• The learned senior counsel emphasized on the seriousness of
C the present matter, stating that such restrictions on the
fundamental rights is the reason for the placement of Article
32 of the Constitution in Part III, as a fundamental right which
allows for the enforcement of the other fundamental rights.
He referred to the Constituent Assembly debates to highlight
D the import of Article 32, as contemplated by the Members of
the Constituent Assembly.
• The learned senior counsel also placed before this Court the
Government of India National Telecom Policy, 2012, and
submitted that the wide restrictions imposed by the State are
E in contravention of the aforementioned policy. He submitted
that the freedom of speech and expression is meant to allow
people to discuss the burning topic of the day, including the
abrogation of Article 370 of the Constitution.
• Lastly, the learned senior counsel emphasized that the
F restrictions that were imposed are meant to be temporary in
nature, have lasted for more than 100 days, which fact should
be taken into account by this Court while deciding the matter.
Ms. Meenakshi Arora, Senior Counsel for the Intervenor
in I.A. No. 140276 in W.P. (C) No. 1031 of 2019
G • Learned senior counsel submitted that Articles 19 and 21 of
the Constitution require that any action of the State must
demonstrate five essential features: (a) backing of a ‘law’, (b)
legitimacy of purpose, (c) rational connection of the act and
object, (d) necessity of the action, and (e) when the above
four are established, then the test of proportionality.
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 841
[N. V. RAMANA, J.]

• At the outset, learned senior counsel submitted that it is A
necessary to test the validity of the orders by reference to the
facts and circumstances prevailing on the date of passing of
the said orders, i.e., 04.08.2019.
• Learned senior counsel submitted that the orders that have not
been published cannot be accorded the force of law. The B
necessity of publication of law is a part of the rule of natural
justice. Not only must the orders be published, it is also
necessary that these orders be made available and accessible
to the public. The State cannot refuse to produce the orders
before the Court or claim any privilege.
C
• The learned senior counsel further submitted that,
notwithstanding the expediency of the situation, the necessity
of a measure must be shown by the State. The people have a
right to speak their view, whether good, bad or ugly, and the
State must prove that it was necessary to restrict the same.
D
• On the point of proportionality, the learned senior counsel
submitted that the test of proportionality was upheld by this
Court in the case of K. S. Puttaswamy v. Union of India,
(2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy-
9J.)”) and therefore the proportionality of a measure must be
determined while looking at the restrictions being imposed by E
the State on the fundamental rights of citizens. The learned
senior counsel pointed out that it is not just the legal and physical
restrictions that must be looked at, but also the fear that these
sorts of restrictions engender in the minds of the populace,
while looking at the proportionality of measures. F
Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.
(Crl.) No. 225 of 2019
• Although this Writ Petition was withdrawn during arguments,
the learned senior counsel wished to make certain submissions
regarding the issue at hand. The learned senior counsel G
submitted on behalf of the Petitioner that although he and his
family were law abiding citizens, yet they are suffering the
effects of the restrictions. Citing the House of Lords judgment
of Liversidge v. Anderson, (1941) 3 All ER 338 the learned
senior counsel submitted that it was the dissent by Lord Atkin,
H
842 SUPREME COURT REPORTS [2020] 1 S.C.R.

A upholding the fundamental rights of the citizens of the United
Kingdom, which is now the law of the land.
Mr. K. K. Venugopal, Learned Attorney General for the
Union of India
• The learned Attorney General supported the submissions made
B by the Solicitor General. He submitted that the background of
terrorism in the State of Jammu and Kashmir needs to be taken
into account. Relying on National Investigation Agency v.
Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, the learned
Attorney General submitted that this Court while deciding the
C aforementioned case, has taken cognizance of the problem of
terrorism in the State before.
• According to the learned Attorney General, keeping in mind
the facts regarding cross border terrorism and internal militancy,
it would have been foolish to have not taken any preventive
D measures in the circumstances. The necessity of the orders
under Section 144, Cr.P.C. are apparent from the background
facts and circumstances, when there can be huge violence if
the Government did not take these kinds of measures. In fact,
similar steps were taken earlier by the Government in 2016
when a terrorist was killed in the State.
E
Mr. Tushar Mehta, Solicitor General for the State of Jammu
and Kashmir
• The learned Solicitor General submitted that the first and
foremost duty of the State is to ensure security and protect the
F citizens- their lives, limbs and property. He further submitted
that the facts relied on by the Petitioners and the Intervenors
were incorrect, as they did not have the correct information
about the factual position on the ground in the State of Jammu
and Kashmir.
• The learned Solicitor General submitted that the historical
G
background of the State of Jammu and Kashmir is necessary
to be looked at to understand the measures taken by the State.
The State has been a victim of both physical and digital cross
border terrorism.
• The abrogation of Article 370 of the Constitution on 05.08.2019
H was a historic step, which resulted not in the taking away of
ANURADHA BHASIN v. UNION OF INDIA & ORS. 843
[N. V. RAMANA, J.]

the rights of the citizens of Jammu and Kashmir, but conferment A
of rights upon them which they never had. Now, with the
abrogation, 106 people friendly laws have become applicable
to the State of Jammu and Kashmir.
• The learned Solicitor General submitted that the Petitioners
were incorrect to state that public movement was restricted. B
In fact, individual movement had never been restricted.
Additionally, while schools were closed initially, they have now
been reopened. Depending on the facts, circumstances and
requirements of an area, restrictions were put in place which
are now being relaxed gradually.
C
• On the orders passed by the Magistrates under Section 144,
Cr.P.C., in their respective jurisdictional areas, the learned
Solicitor General submitted that they were best placed to know
the situation on the ground, and then took their respective
decisions accordingly. Currently, there is nearly hundred percent
relaxation of restrictions. Restrictions were being relaxed on D
the basis of the threat perception. Restrictions were never
imposed in the Ladakh region. This fact shows that there was
application of mind while passing the orders by the officers on
the ground, and that there was no general clampdown, as is
being suggested by the Petitioners. E
• Further, the learned Solicitor General pointed to various figures
to indicate that people were leading their ordinary lives in the
State. He submitted that all newspapers, television and radio
channels are functioning, including from Srinagar, where the
Petitioner in W.P. (C) No. 1031 of 2019 is situated. The learned F
Solicitor General further indicated that the Government had
taken certain measures to ensure that essential facilities would
be available to the populace.
• The learned Solicitor General submitted that orders passed under
Section 144, Cr.P.C. can be preventive in nature, in order to G
prevent danger to public safety. The Magistrate can pass the
order even on the basis of personal knowledge, and the same
is supposed to be a speedy mechanism. The orders passed
must be considered keeping in mind the history and the
background of the State.
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844 SUPREME COURT REPORTS [2020] 1 S.C.R.

A • Relying on Babulal Parate v. State of Bombay, AIR 1960
SC 51, and Madhu Limaye v. Sub-Divisional Magistrate,
Monghgyr, (1970) 3 SCC 746, the learned Solicitor General
submitted that the situation in the State of Jammu and Kashmir
was such that the orders could be justified in view of
maintenance of the “security of the State”. Regarding the
B
Petitioners’ submission that the restrictions could have been
imposed on specific individuals, the learned Solicitor General
submitted that it was impossible to segregate, and control, the
troublemakers from the ordinary citizens.
• The learned Solicitor General submitted that there were enough
C facts in the knowledge of the Magistrate to pass the orders
under Section 144, Cr.P.C. There was sufficient speculation
on the ground to suggest that there might be a move to abrogate
Article 370 of the Constitution, and they were aware of the
situation on the ground. Provocative speeches and messages
D were being transmitted. This information is all available in the
public domain.
• It was further submitted that the Court does not sit in appeal of
the decision to impose restrictions under Section 144, Cr.P.C.
and has limited jurisdiction to interfere, particularly when there
E are no allegations of mala fide made against the officers and
when the question involved is of national security. The level of
restriction required is best left to the officers who are on the
ground with the requisite information and knowledge, and the
same is not to be replaced by the opinion of the Courts.

F • With respect to the communications and internet shutdown,
the learned Solicitor General submitted that internet was never
restricted in the Jammu and Ladakh regions. Further, he
submitted that social media, which allowed people to send
messages and communicate with a number of people at the
same time, could be used as a means to incite violence. The
G purpose of the limited and restricted use of internet is to ensure
that the situation on the ground would not be aggravated by
targeted messages from outside the country. Further, the
internet allows for the transmission of false news or fake images,
which are then used to spread violence. The dark web allows
H individuals to purchase weapons and illegal substances easily.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 845
[N. V. RAMANA, J.]

• The learned Solicitor General submitted that the jurisprudence A
on free speech relating to newspapers cannot be applied to the
internet, as both the media are different. While newspapers
only allowed one-way communication, the internet makes two-
way communication by which spreading of messages are very
easy. The different context should be kept in mind by the Court
B
while dealing with the restrictions with respect to the two media.
• While referring to various photographs, tweets and messages
of political leaders of Kashmir, he stated that these statements
are highly misleading,abrasive and detrimental to the integrity
and sovereignty of India.
C
• Further, it is not possible to ban only certain websites/parts of
the Internet while allowing access to other parts. Such a
measure was earlier attempted in 2017, but it was not
successful.
• Lastly, the learned Solicitor General submitted that the orders D
passed under the Suspension Rules were passed in compliance
with the procedure in the Suspension Rules, and are being
reviewed strictly in terms of the same.
9. Some of the intervenors have supported the submissions made
by the learned Attorney General and the Solicitor General, and indicated E
that the restrictions were necessary and in compliance with the law.
They have also submitted that normalcy is returning in the State of Jammu
and Kashmir, and that the present petitions are not maintainable.
C. ISSUES
10. In line with aforesaid facts and arguments,the following F
questions of law arise for our consideration:
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 G
freedom to practise any profession, or to carry on any
occupation, trade or business over the Internetis a part of
the fundamental rights under Part III of the Constitution?
III. Whether the Government’s action of prohibiting internet
access is valid? H
846 SUPREME COURT REPORTS [2020] 1 S.C.R.

A IV. Whether the imposition of restrictions under Section 144,
Cr.P.C. were valid?
V. Whether the freedom of press of the Petitioner in W.P.
(C) No. 1031 of 2019 was violated due to the restrictions?
D.PRODUCTION OF ORDERS
B
11. The present petitions, their context and conduct of the parties,
have placed this Court in a peculiar situation. We have been asked to go
into the question of the validity of orders, restricting movement and
communication, passed in the State of Jammu and Kashmir by various
authorities, however, the orders are not before us. The Petitioners and
C Intervenors claim that the orders were not available, which is why they
could not place them on record.
12. At the same time, while the non-availability of orders was not
denied by the Respondent-State, they did not produce the said orders. In
fact, when this Court by order dated 16.10.2019 asked them to produce
D the orders, the Respondent-State placed on record only sample orders,
citing difficulty in producing the numerous orders which were being
withdrawn and modified on a day-to-day basis. The Respondent-State
also claimed that the plea to produce orders by the Petitioners was an
expansion of the scope of the present petitions.
E 13. At the outset, a perusal of the prayers in the Writ Petitions
before us should be sufficient to reject the aforementioned contention of
the Respondent-State. In W.P. (C) No. 1164 of 2019 and I.A no. 157139
in I.A. no. 139555 of 2019 in W.P. (C) No. 1031 of 2019, a prayer has
been made to issue a writ of mandamus or any other writ directing
F Respondent Nos. 1 and 2 to produce all orders by which movement of
all persons has been restricted since 04.08.2019. Further, production of
all orders by way of which communication has been blocked in State of
Jammu and Kashmir has also been sought.
14. On the obligation of the State to disclose information,
particularly in a writ proceeding, this Court in Ram Jethmalani v. Union
G
of India, (2011) 8 SCC 1, observed as follows:
“75. In order that the right guaranteed by clause (1) of Article 32
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
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 847
[N. V. RAMANA, J.]

information necessary for them to properly articulate the A
case and be heard, especially where such information is in
the possession of the State.”
(emphasis supplied)
15. We may note that there are two separate types of reasoning
that mandates us to order production of the orders passed by the B
authorities in this case. First, Article 19 of the Constitution has been
interpreted to mandate right to information as an important facet of the
right to freedom of speech and expression. A democracy, which is sworn
to transparency and accountability, necessarily mandates the production
of orders as it is the right of an individual to know. Moreover, fundamental C
rights itself connote a qualitative requirement wherein the State has to
act in a responsible manner to uphold Part III of the Constitution and not
to take away these rights in an implied fashion or in casual and cavalier
manner.
16. Second, there is no dispute that democracy entails free flow D
of information. There is not only a normative expectation under the
Constitution, but alsoa requirement under natural law, that no law should
be passed in a clandestine manner. As Lon L. Fuller suggests in his
celebrated article “there can be no greater legal monstrosity than a
secret statute”.1 In this regard, Jeremy Bentham spoke about open justice
as the “keenest spur to exertion”. In the same context, James Madison E
stated “apopular government, without popular information, or the
means of acquiring it, is but a prologue to a farce or a tragedy; or
perhaps both. Knowledge will forever govern the ignorance and a
people who mean to be their own Governors must arm themselves
with the power which knowledge gives”. F
17. As a general principle, on a challenge being made regarding
the curtailment of fundamental rights as a result of any order passed or
action taken by the State which is not easily available, the State should
take a proactive approach in ensuring that all the relevant orders are
placed before the Court, unless there is some specific ground of privilege G
or countervailing public interest to be balanced, which must be specifically
claimed by the State on affidavit. In such cases, the Court could determine
whether, in the facts and circumstances, the privilege or public interest
1
Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard
Law Review, 71(4), 630, 651 [February, 1958]. H
848 SUPREME COURT REPORTS [2020] 1 S.C.R.

A claim of the State overrides the interests of the Petitioner. Such portion
of the order can be redactedor such material can be claimed as privileged,
if the State justifies such redaction on the grounds, as allowed under the
law.
18. In the present case, while the State initially claimed privilege,
B it subsequently dropped the claim and produced certain sample orders,
citing difficulty in producing all the orders before this Court. In our opinion,
this is not a valid ground to refuse production of orders before the Court.
E. FUNDAMENTAL RIGHTS UNDER PART III AND
RESTRICTIONS THEREOF
C 19. The petitioners have contended that the impugned restrictions
have affected the freedom of movement, freedom of speech and
expression and right to free trade and avocation. In this context, we
have to first examine the nature of the fundamental rights provided under
the Constitution.
D 20. The nature of fundamental rights under Part III of the
Constitution is well settled.The fundamental rights areprescribed as a
negative list, so that “no person could be denied such right until the
Constitution itself prescribes such limitations”. The only exception to the
aforesaid formulation is Article 21A of the Constitution,which is a positive
E right that requires an active effort by the concerned government to ensure
that the right to education is provided to all children up to the age of 16
years.
21. The positive prescription of freedom of expression will result
in different consequences which our own Constitution has not entered
F into. Having different social and economic backgrounds and existing on
a different scale of development, the human rights enshrined therein
have taken a different role and purpose. The framers of the Indian
Constitution were aware of the situation of India, including the socio-
economic costs of such proactive duty, and thereafter took an informed
decision to restrict the application of fundamental rights in a negative
G manner. This crucial formulation is required to be respected by this
Court,which has to uphold the constitutional morality behind utilization of
such negative prescriptions.
22. Now, we need to concern ourselves about the freedom of
expression overthe medium of internet. There is no gainsaying that in
H today’s world the internet stands as the most utilized and accessible
ANURADHA BHASIN v. UNION OF INDIA & ORS. 849
[N. V. RAMANA, J.]

medium for exchange of information. The revolution within the A
cyberspace has been phenomenal in the past decade, wherein the
limitation of storage space and accessibility of print medium has been
remedied by the usage of internet.
23. At this point it is important to note the argument of Mr. Vinton
G. Cerf, one of the ‘fathers of the internet’. He argued that while the B
internet is very important, however, it cannot be elevated to the status of
a human right.2 Technology, in his view, is an enabler of rights and not a
right in and of itself. He distinguishes between placing technology among
the exalted category of other human rights, such as the freedom of
conscience, equality etc. With great respect to his opinion, the prevalence
and extent of internet proliferation cannot be undermined in one’s life. C

24. Law and technology seldom mix like oil and water. There is a
consistent criticism that the development of technology is not met by
equivalent movement in the law. In this context, we need to note that the
law should imbibe the technological development and accordingly mould
its rules so as to cater to the needs of society. Non recognition of D
technology within the sphere of law is only a disservice to the inevitable.
In this light, the importance of internet cannot be underestimated, as
from morning to night we are encapsulated within the cyberspace and
our most basic activities are enabled by the use of internet.
25. We need to distinguish between the internet as a tool and the E
freedom of expression through the internet. There is no dispute that
freedom of speech and expression includes the right to disseminate
information to as wide a section of the population as is possible. The
wider range of circulation of information or its greater impact cannot
restrict the content of the right nor can it justify its denial. [refer to F
Secretary, Ministry of Information & Broadcasting Government of
India v. Cricket Association of Bengal, (1995) 2 SCC 161;Shreya
Singhal v. Union of India, (2015) 5 SCC 1].
26. The development of the jurisprudence in protecting the medium
for expression can be traced to the case of Indian Express v. Union of G
India, (1985) 1 SCC 641, wherein this Court had declared that the
freedom of print medium is covered under the freedom of speech and
expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan
Sanghatana, (1988) 3 SCC 410, it was held that the right of citizens to
2
Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January
04, 2012). H
850 SUPREME COURT REPORTS [2020] 1 S.C.R.

A exhibit films on Doordarshan, subject to the terms and conditions to be
imposed by the Doordarshan, is a part of the fundamental right of
freedom of expression guaranteed under Article 19(1)(a), which can be
curtailed only under circumstances set out under Article 19(2). Further,
this Court expanded this protection to the use of airwaves in the case of
Secretary, Ministry of Information & Broadcasting, Government of
B
India(supra). In this context, we may note that this Court, in a catena
of judgments, has recognized free speech as a fundamental right, and,as
technology has evolved, has recognized the freedom of speech and
expression overdifferent media of expression. Expression through the
internet has gained contemporary relevance and is one of the major
C means of information diffusion. Therefore, the freedom of speech and
expression through the medium of internet is an integral part of Article
19(1)(a) and accordingly, any restriction on the same must be in
accordance with Article 19(2) of the Constitution.
27. In this context, we need to note that the internet is also a very
D important tool for trade and commerce. The globalization of the Indian
economy and the rapid advances in information and technology have
opened up vast business avenues and transformed India as a global IT
hub. There is no doubt that there are certain trades which are completely
dependent on the internet. Such a right of trade through internet also
fosters consumerism and availability of choice. Therefore, the freedom
E of trade and commerce through the medium of the internetis also
constitutionally protected under Article 19(1)(g), subject to the restrictions
provided under Article 19(6).
28. None of the counsels have argued for declaring the right to
access the internet as a fundamental right and therefore we are not
F expressing any view on the same. We are confining ourselves to declaring
that the right to freedom of speech and expression under Article 19(1)(a),
and the right to carry on any trade or business under 19(1)(g), using the
medium of internet is constitutionally protected.
29. Having explained the nature of fundamental rights and the
G utility of internet under Article 19 of the Constitution, we need to concern
ourselves with respect to limitations provided under the Constitution on
these rights. With respect to thefreedom of speech and expression,
restrictions are provided under Article 19(2) of the Constitution, which
reads as under:
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 851
[N. V. RAMANA, J.]

“(2) Nothing in sub clause (a) of clause (1) shall affect the A
operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order,
B
decency or morality or in relation to contempt of court, defamation
or incitement to an offence.”
30. The right provided under Article 19(1) has certain exceptions,
which empowers the State to impose reasonable restrictions in appropriate
cases. The ingredients of Article 19(2) of the Constitution are that:
C
a. The action must be sanctioned by law;
b. The proposed action must be a reasonable restriction;
c. Such restriction must be in furtherance of interests of the
sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency D
or morality or in relation to contempt of court, defamation
or incitement to an offence.
31. At the outset, the imposition of restriction is qualified by the
term ‘reasonable’ and is limited to situations such as interests of the
sovereignty, integrity, security, friendly relations with the foreign States, E
public order, decency or morality or contempt of Court, defamation or
incitement to an offence. Reasonability of a restriction is used in a
qualitative, quantitative and relative sense.
32. It has been argued by the counsel for the Petitioners that the
restrictions under Article 19 of the Constitution cannot mean complete F
prohibition. In this context we may note that the aforesaid contention
cannot be sustained in light of a number of judgments of this Court wherein
therestriction has also been held to include complete prohibition in
appropriate cases. [Madhya Bharat Cotton Association Ltd. v. Union
of India, AIR 1954 SC 634, Narendra Kumar v. Union of India, (1960)
G
2 SCR 375, State of Maharashtra v. Himmatbhai Narbheram Rao,
(1969) 2 SCR 392, Sushila Saw Mill v. State of Orissa, (1995) 5 SCC
615, Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87
and Dharam Dutt v. Union of India, (2004) 1 SCC 712]

H
852 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 33. The study of aforesaid case law points to three propositions
which emerge with respect to Article 19(2) of the Constitution. (i)
Restriction on free speech and expression may include cases of
prohibition. (ii) There should not be excessive burden on free speech
even if a complete prohibition is imposed, and the government has to
justify imposition of such prohibition and explain as to why lesser
B
alternatives would be inadequate. (iii) Whether a restriction amounts to
a complete prohibition is a question of fact, which is requiredto be
determined by the Court with regard to the facts and circumstances of
each case. [refer to State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat, (2005) 8 SCC 534].
C 34. The second prong of the test, wherein this Court is required to
find whether the imposed restriction/prohibition was least intrusive, brings
us to the question of balancing and proportionality. These concepts are
not a new formulation under the Constitution. In various parts of the
Constitution, this Court has taken a balancing approach to harmonize
D two competing rights. In the case of Minerva Mills Ltd. v. Union of
India, (1980) 2 SCC 591 and Sanjeev Coke Manufacturing Company
v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147, this Court has
already applied the balancing approach with respect tofundamental rights
and the directive principles of State Policy.
E 35. Before, we delve into the nuances of ‘restriction’ as occurring
under Article 19(2) of the Constitution, we need to observe certain facts
and circumstances in this case. There is no doubt that Jammu and
Kashmir has been a hot bed of terrorist insurgencies formany years. In
this light, we may note the State’s submission that since 1990 to 2019
there have been 71,038 recorded incidents of terrorist violence, 14,038
F civilians have died, 5292 security personnel were martyred, 22,536
terrorists were killed. The geopolitical struggle cannot be played down
or ignored. In line with the aforesaid requirement, we may note that
even the broadest guarantee of free speech would not protect the entire
gamut of speech. The question which begs to be answered is whether
G there exists a clear and present danger in restricting such expression.
36. Modern terrorism heavily relies on the internet. Operations on
the internet do not require substantial expenditure and are not traceable
easily. The internet is being used to support fallacious proxy wars by
raising money, recruiting and spreading propaganda/ideologies. The
H prevalence of the internet provides an easy inroad to young impressionable
ANURADHA BHASIN v. UNION OF INDIA & ORS. 853
[N. V. RAMANA, J.]

minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public A
Policy, Pepperdine University,states in his article about propaganda and
the use of internet in the following manner:
“Terrorist organisations have also begun to employ websites as a
form of information warfare. Their websites can disperse
inaccurate information that has far-reaching consequences. B
Because internet postings are not regulated sources of news, they
can reflect any viewpoint, truthful or not. Thus, readers tend to
consider internet items to be fact, and stories can go unchecked
for some time. Furthermore, streaming video and pictures of
frightening scenes can support and magnify these news stories.
As a result, the internet is a powerful and effective tool for C
spreading propaganda.”
37. Susan W. Brenner,4 NCR Distinguished Professor of Law
and Technology, University of Dayton School of Law, also notes that the
traditional approach has not worked satisfactorily on terrorism due to
the proliferation of the internet.It is the contention of the respondents D
that the restriction on the freedom of speech was imposed due to the
fact that there were national security issues over and above a law and
order situation, wherein there were problems of infiltration and support
from the other side of the border to instigate violence and terrorism. The
learned Solicitor General pointed out that the ‘war on terrorism’ requires E
imposition of such restriction so as to nip the problem of terrorismin the
bud. He submitted that in earlier times, sovereignty and integrity of a
State was challenged only on occurrence of war. In some cases, there
have been instances where the integrity of the State has been challenged
by secessionists. However, the traditional conceptions of warfare have
undergone an immense change and now it has been replaced by a new F
term called ‘war on terror’. This war, unlike the earlier ones, is not
limited to territorial fights, rather, it transgresses into other forms affecting
normal life. The fight against terror cannot be equated to a law and
order situation as well. In this light, we observe that this confusion of
characterising terrorism as a war stricto sensu or a normal law and G
order situation has plagued the submission of the respondent Government
and we need to carefully consider such submissions.
3
Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res.
J. Int’l L. 789 (2007).
4
Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for
Dealing with Terrorist Activity Online, 99 Am. Soc’y Int’l. L. Proc. 108 (2005). H
854 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 38. Before analysing the restrictions imposed on the freedom of
speech and expression in the Indian context, we need to have a broad
analysis of the state of affairs in the United States of America (hereinafter
‘US’) where freedom of expression under the First Amendment is treated
to be very significant withthe US being perceived to be one of the liberal
constituencies with respect to free speech jurisprudence. However, we
B
need to refer to the context and state of law in the US, before we can
understand such an assertion.
39. During the US civil war, a dramatic confrontation over free
speech arose with respect to the speech of Clement L. Vallandigham,
who gave a speech calling the civil war ‘wicked, cruel and unnecessary’.
C He urged the citizens to use ballot boxes to hurl ‘President Lincoln’ from
his throne. As a reaction, Union soldiers arrested Mr. Vallandigham and
he had to face a five-member military commission which charged him
with ‘declaring disloyal sentiments and opinions with the object
and purpose of weakening the power of the government in its efforts
D to suppress an unlawful rebellion’. [Ex parte Vallandigham, 28 F.
Cas. 874 (1863)] The commission found Mr. Vallandigham guilty and
imposed imprisonment during the war. The aforesaid imprisonment was
met with demonstrations and publications calling such imprisonment as
a crime against the US Constitution. President Lincoln, having regard to
the US Constitution, commuted the imprisonment and converted the same
E to banishment. He justified the aforesaid act by stating that banishment
was more humane and a less disagreeable means of securing least
restrictive measures.
40. During World War I, many within the US had strong feelings
against the war and the draft imposed by the administration of President
F Woodrow Wilson. During this period, the US enacted the Espionage
Act, 1917 which penalised any person who wilfully caused or attempted
to cause insubordination, disloyalty, mutiny by refusal from duty or naval
services. In any case, in Abraham v. United States, 250 U.S. 616 (1919),
Justice Holmes even in his dissent observed as under:
G “I do not doubt for a moment that, by the same reasoning that
would justify punishing persuasion to murder, the United States
constitutionally may punish speech that produces or is intended to
produce a clear and imminent danger that it will bring about
forthwith certain substantive evils that the United States
H constitutionally may seek to prevent. The power undoubtedly
ANURADHA BHASIN v. UNION OF INDIA & ORS. 855
[N. V. RAMANA, J.]

isgreater in time of war than in time of peace, because war A
opens dangers that do not exist at other times.”
(emphasis supplied)
41. The Second World War was also riddled with instances of
tussle between the First Amendment and national security issues. An
instance of the same was the conviction of William Dudley Pelley, under B
the Espionage Act, 1917, which the Supreme Court of United States
refused to review.
42. During the Cold War, the attention of the American Congress
was on the increase of communism. In 1954, Congress even enacted
the Communist Control Act, which stripped the Communist party of all C
rights, privileges and immunities. During this time, Dennis v. United
States, 341 US 494 (1951), is an important precedent.Sections 2(a)(1),
2(a)(3) and 3 of the Alien Registration Act, 1940 made it unlawful for
any person to knowingly or wilfully advocate with the intent of the
overthrowing or destroying the Government of the United States by force D
or violence, to organize or help to organize any group which does so, or
to conspire to do so. The Petitioner in the aforementioned case challenged
the aforesaid provision on the ground that these provisions violated the
First Amendment. The US Supreme Court held:
“An analysis of the leading cases in this Court which have involved E
direct limitations on speech, however, will demonstrate that both
the majority of the Court and the dissenters in particular cases
have recognized that this is not an unlimited, unqualified right, but
that the societal value of speech must, on occasion, be subordinated
to other values and considerations.”
F
43. During the Vietnam war, the US Supreme Court had to deal
with the case of Brandenburg v. Ohio, 395 US 444 (1969), wherein the
Court over-ruled Dennis (supra) and held that the State cannot punish
advocacy of unlawful conduct, unless it is intended to incite and is likely
to incite ‘imminent lawless action’.
G
44. There is no doubt that the events of September 2001 brought
new challenges to the US in the name of ‘war on terror’. In this context,
Attorney General John Ashcroft stated that “To those… who scare
peace-loving people with phantoms of lost liberty, my message is
this: Your tactics only aid terrorists, for they erode our national
H
856 SUPREME COURT REPORTS [2020] 1 S.C.R.

A unity and diminish our resolve. They give ammunition to America’s
enemies…’.5 However, Bruce Ackerman, in his article,6 states that:
“The “war on terrorism” has paid enormous political
dividends....but that does not make it a compelling legal concept.
War is traditionally defined as a state of belligerency between
B sovereigns....The selective adaptation of doctrines dealing with
war predictably leads to sweeping incursions on fundamental
liberties.”
45. From the aforesaid study of the precedents and facts, we
may note that the law in the US has undergone lot of changes concerning
C dissent during war. The position that emerges is that any speech which
incites imminent violence does not enjoy constitutional protection.
46. It goes without saying that the Government is entitled to
restrictthe freedom of speech and expression guaranteed under Article
19(1)(a) if the need be so, in compliance with the requirements under
D Article 19(2). It is in this context, while the nation is facing such adversity,
an abrasive statement with imminent threat maybe restricted, if the same
impinges upon sovereignty and integrity of India. The question is one of
extent rather than the existence of the power to restrict.
47. The requirement of balancing various considerations brings
E us to the principle of proportionality. In the case of
K.S. Puttaswamy (Privacy-9J.) (supra), this Court observed:
“310…Proportionality is an essential facet of the guarantee against
arbitrary State action because it ensures that the nature and quality
of the encroachment on the right is not disproportionate to the
F purpose of the law...”
48. Further, in the case of CPIO v Subhash Chandra Aggarwal,
(2019) SCC OnLine SC 1459, the meaning of proportionality was
explained as:
“225…It is also crucial for the standard of proportionality to be
G applied to ensure that neither right is restricted to a greater extent
than necessary to fulfil the legitimate interest of the countervailing
interest in question…”
5
Senate Judiciary Committee Hearing on Anti-Terrorism Policy, 106th Cong. (Dec. 6,
2001) (testimony of Attorney General John Ashcroft)
6
Ackerman, Bruce, “The Emergency Constitution”, Faculty Scholarship Series, 113
H (2004).
ANURADHA BHASIN v. UNION OF INDIA & ORS. 857
[N. V. RAMANA, J.]

49. At the same time, we need to note that when it comes to A
balancing national security with liberty, we need to be cautious. In the
words of Lucia Zedner7:
“Typically, conflicting interests are said to be ‘balanced’ as if there
were a self-evident weighting of or priority among them. Yet rarely
are the particular interests spelt out, priorities made explicitly, or B
the process by which a weight is achieved made clear. Balancing
is presented as a zero-sum game in which more of one necessarily
means less of the other … Although beloved of constitutional
lawyers and political theorists, the experience of criminal justice
is that balancing is a politically dangerous metaphor unless careful
regard is given to what is at stake.” C

50. The proportionality principle, can be easily summarized by
Lord Diplock’s aphorism ‘you must not use a steam hammer to crack
a nut, if a nutcracker would do?’ [refer to R v. Goldsmith, [1983] 1
WLR 151, 155 (Diplock J)]. In other words, proportionality is all about
means and ends. D

51. The suitability of proportionality analysis under Part III, needs
to be observed herein. The nature of fundamental rights has been
extensively commented upon. One view is that the fundamental rights
apply as ‘rules’, wherein they apply in an ‘all-or-nothing fashion’. This
view is furthered by Ronald Dworkin, whoargued in his theory that E
concept of a right implies its ability to trump over a public good.8 Dworkin’s
view necessarily means that the rights themselves are the end, which
cannot be derogated as they represent the highest norm under the
Constitution. This would imply that if the legislature or executive act in a
particular manner, in derogation of the right, with an object of achieving F
public good, they shall be prohibited from doing so if the aforesaid action
requires restriction of a right. However, while such an approach is often
taken by American Courts, the samemay not be completely suitable in
the Indian context, having regardto the structure of Part III which comes
with inbuilt restrictions.
G

7
Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice,
(2005) 32 Journal of Law and Society 510.
8
Ronald Dworkin, “Rights as Trumps” in Jeremy Waldron (ed.), Theories of Rights
(1984) 153 (hereinafter Dworkin, “Rights as is trumps”).
H
858 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 52. However, there is an alternative view, held by Robert Alexy,
wherein the ‘fundamental rights’ are viewed as ‘principles’,9 wherein
the rights are portrayed in a normative manner. Rules are norms that are
always either fulfilled or not; whereas principles are norms which require
that something be realized to the greatest extent possible given the legal
and factual possibilities.10 This characterisation of principles has
B
implications for how to deal with conflicts between them: it means that
where they conflict, one principle has to be weighed against the other
and a determination has to be made as to which has greater weight in
this context.11 Therefore, he argues that nature of principles implies the
principle of proportionality.12
C 53. The doctrine of proportionality is not foreign to the Indian
Constitution, considering the use of the word ‘reasonable’ under Article
19 of the Constitution. In a catena of judgments, this Court has held
“reasonable restrictions” are indispensable for the realisation of freedoms
enshrined under Article 19, as they are what ensure that enjoyment of
D rights is not arbitrary or excessive, so as to affect public interest. This
Court, while sitting in a Constitution Bench in one of its earliest judgments
in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
interpreted limitations on personal liberty, and the balancing thereof, as
follows:
E “7. The phrase “reasonable restriction” connotes that the
limitation imposed on a person in enjoyment of the
right should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
“reasonable” implies intelligent care and deliberation, that is, the
choice of a course which reason dictates. Legislation which
F arbitrarily or excessively invades the right cannot be said to
contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in Article 19(1)(g)
and the social control permitted by clause (6) of Article 19, it must
be held to be wanting in that quality.”
G (emphasis supplied)

9
R. Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).
10
Ibid at page 47.
11
Ibid, page 50.
12
H Ibid, page 66.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 859
[N. V. RAMANA, J.]

This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196,while A
laying down the test of reasonableness, held that:
15. … It is important in this context to bear in mind that the test
of reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard or general pattern,
of reasonableness can be laid down as applicable to all cases. The nature B
of the right alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter
into the judicial verdict….
C
(emphasis supplied)
A Constitution Bench of this Court in Mohammed Faruk v. State
of Madhya Pradesh, (1969) 1 SCC 853 while determining rights under
Article 19(1)(g) of the Constitution, discussed the doctrine of
proportionality in the aforesaid terms: D
“10. … The Court must in considering the validity of the impugned
law imposing a prohibition on the carrying on of a business or
profession, attempt an evaluation of its direct and immediate
impact upon the fundamental rights of the citizens affected
thereby and the larger public interest sought to be ensured E
in the light of the object sought to be achieved, the necessity
to restrict the citizen’s freedom … the possibility of
achieving the object by imposing a less drastic restraint …
or that a less drastic restriction may ensure the object
intended to be achieved.”
F
(emphasis supplied)
In the case of Om Kumar v. Union of India, (2001) 2 SCC 386
the principle of proportionality, in light of administrative orders, was
explained as follows:
28. By “proportionality”, we mean the question whether, G
while regulating exercise of fundamental rights, the appropriate
or least-restrictive choice of measures has been made by the
legislature or the administrator so as to achieve the object of the
legislation or the purpose of the administrative order, as the case
maybe. Under the principle, the court will see that the legislature and
H
860 SUPREME COURT REPORTS [2020] 1 S.C.R.

A the administrative authority ”maintain a proper balance between
the adverse effects which the legislation or the administrative
order may have on the rights, liberties or interests of persons
keeping in mind the purpose which they were intended to serve”.
The legislature and the administrative authority are, however, given an
area of discretion or a range of choices but as to whether the choice
B
made infringes the rights excessively or not is for the court. That is what
is meant by proportionality.
(emphasis supplied)
[See also State of Bihar v. Kamla Kant Misra, (1969) 3 SCC
C 337; BishambharDayal Chandra Mohan v. State of Uttar Pradesh,
(1982) 1 SCC 39]
54. Recently, this Court in Modern Dental College & Research
Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 has held that
no constitutional right can be claimed to the absolute in a realm where
D rights are interconnected to each other, and limiting some rights in public
interest might therefore be justified. The Court held as follows:
“62. It is now almost accepted that there are no absolute
constitutional rights. [Though, debate on this vexed issue still
continues and some constitutional experts claim that there are
E certain rights, albeit very few, which can still be treated as
“absolute”. Examples given are:(a) Right to human dignity which
is inviolable,(b) Right not to be subjected to torture or to inhuman
or degrading treatment or punishment. Even in respect of such
rights, there is a thinking that in larger public interest, the
extent of their protection can be diminished. However, so
F far such attempts of the States have been thwarted by the
judiciary.] … In fact, such a provision in Article 19 itself on the
one hand guarantees some certain freedoms in clause (1) of Article
19 and at the same time empowers the State to impose reasonable
restrictions on those freedoms in public interest. This notion
G accepts the modern constitutional theory that the
constitutional rights are related. This relativity means that
a constitutional licence to limit those rights is granted where
such a limitation will be justified to protect public interest
or the rights of others. This phenomenon—of both the right
and its limitation in the Constitution—exemplifies the
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 861
[N. V. RAMANA, J.]

inherent tension between democracy’s two fundamental A
elements...”
(emphasis supplied)
55. In the aforesaid case, this Court was posed with a dilemma as
to how to treat competing rights. The Court attempted toresolve the
conflict by holding that rights and limitations must be interpreted B
harmoniously so as to facilitate coexistence. This Court observed therein:
“62… On the one hand is the right’s element, which constitutes a
fundamental component of substantive democracy; on the other
hand is the people element, limiting those very rights through their
representatives. These two constitute a fundamental component C
of the notion of democracy, though this time in its formal aspect.
How can this tension be resolved? The answer is that this
tension is not resolved by eliminating the “losing” facet
from the Constitution. Rather, the tension is resolved by
way of a proper balancing of the competing principles. This D
is one of the expressions of the multi-faceted nature of democracy.
Indeed, the inherent tension between democracy’s different
facets is a “constructive tension”. It enables each facet to
develop while harmoniously coexisting with the others. The
best way to achieve this peaceful coexistence is through
balancing between the competing interests. Such balancing E
enables each facet to develop alongside the other facets,
not in their place. This tension between the two fundamental
aspects—rights on the one hand and its limitation on the other
hand—is to be resolved by balancing the two so that they
harmoniously coexist with each other. This balancing is to be F
done keeping in mind the relative social values of each
competitive aspects when considered in proper context.”
(emphasis supplied)
56. The next conundrum faced by the Court was in achieving the
requisite balance, the solution for which was derived from the principle G
of proportionality. The eminent constitutional jurist, Kai Möller states
that the proportionality principle is the doctrinal tool which guides Judges
through the process of resolving these conflicts.13 One of the theories of
13
Kai Möller, The Global Model of Constitutional Rights (Oxford, Oxford University
Press, 2012). H
862 SUPREME COURT REPORTS [2020] 1 S.C.R.

A proportionality widely relied upon by most theorists is the version
developed by the German Federal Constitutional Court. The aforesaid
doctrine lays down a four pronged test wherein, first, it has to be analysed
as to whether the measure restricting the rights serves a legitimate goal
(also called as legitimate goal test), then it has to be analysed whether
the measure is a suitable means of furthering this goal (the rational
B
connection stage), next it has to be assessed whether there existed an
equally effective but lesser restrictive alternative remedy (the necessity
test) and at last, it should be analysed if such a measure had a
disproportionate impact on the right-holder (balancing stage). One
important feature of German test is the last stage of balancing, which
C determines the outcome as most of the important issues are pushed to
the balancing stage and the same thereby dominates the legal analysis.
Under this approach, any goal which is legitimate will be accepted; as
usually a lesser restrictive measure might have the disadvantage of being
less effective and even marginal contribution to the goal will suffice the
rational connection test.14
D
57. The aforesaid test needs to be contrasted with its Canadian
counterpart also known as the Oakes test. According to the said doctrine,
the object of the measure must be compelling enough to warrant overriding
of the constitutionally guaranteed freedom; a rational nexus must exist
between such a measure and the object sought to be achieved; the means
E must be least restrictive; and lastly, there must be proportionality between
the effects of such measure and the object sought to be achieved. This
doctrine of proportionality is elaborately propounded by Dickson, C.J.,
of the Supreme Court of Canada in R. v. Oakes, (1986) 1 SCR 103
(Can) SC, in the following words (at p. 138):
F “To establish that a limit is reasonable and demonstrably justified
in a free and democratic society, two central criteria must be
satisfied. First, the objective, which the measures, responsible for
a limit on a Charter right or freedom are designed to serve, must
be “of sufficient importance to warrant overriding a constitutionally
G protected right or freedom” … Second … the party invoking
Section 1 must show that the means chosen are reasonable and
demonstrably justified. This involves “a form of proportionality
test”… Although the nature of the proportionality test will vary
14
Kai Möller, Constructing the Proportionality Test: An Emerging Global Conversation,
H Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014).
ANURADHA BHASIN v. UNION OF INDIA & ORS. 863
[N. V. RAMANA, J.]

depending on the circumstances, in each case courts will be A
required to balance the interests of society with those of individuals
and groups. There are, in my view, three important
components of a proportionality test. First, the measures
adopted must be … rationally connected to the objective.
Second, the means … should impair “as little as possible”
B
the right or freedom in question … Third, there must be a
proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient
importance”... The more severe the deleterious effects of a
measure, the more important the objective must be if the measure C
is to be reasonable and demonstrably justified in a free and
democratic society.”
(emphasis supplied)
58. As can be seen, there exists substantial difference in both
approaches, as the Oakes test, instead of requiring “any” legitimate D
goal, demands the same to be compelling enough to warrant the limitation
of constitutional rights. Additionally, while the German necessity test
calls for a lesser restrictive measure which is equivalently effective, the
need for effectiveness has been done away with in the Oakes test wherein
the requirement of least infringing measure has been stipulated. E
59. It is also imperative for us to place reliance on Aharon Barak’s
seminal book15 on proportionality upon which Dr A.K. Sikri, J. placed
reliance while expounding the doctrine of proportionality in Modern
Dental College case (supra) as follows:
“60. … a limitation of a constitutional right will be constitutionally F
permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are
rationally connected to the fulfilment of that purpose;
G
(iii) the measures undertaken are necessary in that there are no
alternative measures that may similarly achieve that same
purpose with a lesser degree of limitation; and finally
15
Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge
University Press, 2012) H
864 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (iv) there needs to be a proper relation (“proportionality stricto
sensu” or “balancing”) between the importance of achieving
the proper purpose and the social importance of preventing the
limitation on the constitutional right.”
(emphasis supplied)
B 60. In Modern Dental College case (supra), this Court also went
on to analyse that the principle of proportionality is inherently embedded
in Indian Constitutionunder the realm of the doctrine of reasonable
restrictions and that the same can be traced under Article 19. The relevant
extracts are placed below:
C “65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined
in Article 19 itself when we read clause (1) along with clause
(6) thereof. While defining as to what constitutes a reasonable
restriction, this Court in a plethora of judgments has held that the
D expression “reasonable restriction” seeks to strike a balance
between the freedom guaranteed by any of the sub-clauses of
clause (1) of Article 19 and the social control permitted by any of
the clauses (2) to (6). It is held that the expression
“reasonable” connotes that the limitation imposed on a
person in the enjoyment of the right should not be arbitrary
E or of an excessive nature beyond what is required in the
interests of public. Further, in order to be reasonable, the
restriction must have a reasonable relation to the object which the
legislation seeks to achieve, and must not go in excess of that
object (see P.P. Enterprises v. Union of India, (1982) 2 SCC
F 33). At the same time, reasonableness of a restriction has
to be determined in an objective manner and from the
standpoint of the interests of the general public and not
from the point of view of the persons upon whom the
restrictions are imposed or upon abstract considerations
(see Mohd.Hanif Quareshi v. State of Bihar, AIR 1958 SC
G 731).”
(emphasis supplied)
61. Thereafter, a comprehensive doctrine of proportionality in line
with the German approach was propounded by this Court in the Modern
Dental College case (supra) wherein the Court held that:
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 865
[N. V. RAMANA, J.]

“63. In this direction, the next question that arises is as to what A
criteria is to be adopted for a proper balance between the two
facets viz. the rights and limitations imposed upon it by a statute.
Here comes the concept of “proportionality”, which is a
proper criterion. To put it pithily, when a law limits a
constitutional right, such alimitation is constitutional if it is
B
proportional. The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary...
64. The exercise which, therefore, is to be taken is to find out as
to whether the limitation of constitutional rights is for a purpose C
that is reasonable and necessary in a democratic society and such
an exercise involves the weighing up of competitive values, and
ultimately an assessment based on proportionality i.e. balancing
of different interests.”
(emphasis supplied) D

62. While some scholars such as Robert Alexy16 call for a strong
interpretation of the necessity stage as it has direct impact upon the
realisation and optimisation of constitutional rights while others such as
David Bilchitz17 found significant problems with this approach.
E
63. First, Bilchitz focuses on the issues arising out of both the
German test and the Oakes test, wherein the former treats all policies to
be necessary by justifying that the available alternatives may not be
equally effective,while the latter applies the “minimal impairment test”
narrowing the constitutionally permissible policies and places a strong
burden on the Government to justify its policies. Therefore, Bilchitz argues F
that if the necessity stage is interpreted strictly, legislations and policies
no matter how well intended will fail to pass the proportionality inquiry if
any other slightly less drastic measure exists. Bilchitz, therefore, indicates
that Alexy’s conclusion may be too quick.
64. Moreover, this also leads to the issue regarding the doctrine of G
separation of power, as Courts would often substitute the views of the
legislature in deciding what is the “least restrictive measure”. Taking the
16
Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press,
2002) 47.
17
David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L.
Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).
H
866 SUPREME COURT REPORTS [2020] 1 S.C.R.

A aforesaid issues into consideration, Bilchitz proposed a moderate
interpretation of the necessity test wherein Courts may no longer be
required to assess policies and measures against impractical and
unreasonable standards. He states that “[n]ecessity involves a process
of reasoning designed to ensure that only measures with a strong
relationship to the objective they seek to achieve can justify an
B
invasion of fundamental rights. That process thus requires courts
to reason through the various stages of the moderate interpretation
of necessity.”18 He therefore recommends a four-step inquiry which is
listed below:19
(MN1) All feasible alternatives need to be identified, with courts
C being explicit as to criteria of feasibility;
(MN2) The relationship between the government measure under
consideration, the alternatives identified in MN1 and the objective
sought to be achieved must be determined. An attempt must be
made to retain only those alternatives to the measure that realise
D the objective in a real and substantial manner;
(MN3) The differing impact of the measure and the alternatives
(identified in MN2) upon fundamental rights must be determined,
with it being recognised that this requires a recognition of
approximate impact; and
E
(MN4) Given the findings in MN2 and MN3, an overall comparison
(and balancing exercise) must be undertaken between the measure
and the alternatives. A judgement must be made whether the
government measure is the best of all feasible alternatives,
considering both the degree to which it realises the government
F objective and the degree of impact upon fundamental rights (‘the
comparative component’).
65. Admittedly, fundamental rights may not be absolute, however,
they require strong protection, thereby mandating a sensible necessity
test as the same will prevent the fundamental right from becoming either
G absolute or to be diminished. Bilchitz, describes the aforesaid test to be
neither factual nor mechanical, but rather normative and qualitative. He

18
Ibid, page 61.
19
Ibid, page 61.
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 867
[N. V. RAMANA, J.]

states that “[t]he key purpose of the necessity enquiry is to offer an A
explicit consideration of the relationship between means, objectives
and rights… Failure to conduct the necessity enquiry with diligence,
however, means that a government measure can escape close
scrutiny in relation to both the realisation of the objective and its
impact upon fundamental rights.”20
B
66. Taking into consideration the aforesaid analysis, Dr. Sikri, J.,
in K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC
1(hereinafter “K.S. Puttaswamy (Aadhaar 5J.)”) reassessed the test
laid down in Modern Dental College Case (supra) which was based
on the German Test and modulated the same as against the tests laid
down by Bilchitz. Therein this Court held that: C

“157. In Modern Dental College & Research Centre [Modern
Dental College & Research Centre v. State of M.P., (2016) 7
SCC 353], four sub-components of proportionality which need to
be satisfied were taken note of. These are:
D
(a) A measure restricting a right must have a legitimate goal
(legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability
or rational connection stage).
(c) There must not be any less restrictive but equally effective E
alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the
right-holder (balancing stage).
158.This has been approved in K.S. Puttaswamy [K.S.
F
Puttaswamy v. Union of India, (2017) 10 SCC 1] as well.
Therefore, the aforesaid stages of proportionality can be looked
into and discussed. Of course, while undertaking this exercise
it has also to be seen that the legitimate goal must be of
sufficient importance to warrant overriding a constitutionally
protected right or freedom and also that such a right impairs G
freedom as little as possible. This Court, in its earlier judgments,
applied German approach while applying proportionality test to
the case at hand. We would like to proceed on that very basis
which, however, is tempered with more nuanced approach as
20
Ibid, 62 H
868 SUPREME COURT REPORTS [2020] 1 S.C.R.

A suggested by Bilchitz. This, in fact, is the amalgam of German
and Canadian approach. We feel that the stages, as mentioned
in Modern Dental College & Research Centre [Modern Dental
College & Research Centre v. State of M.P., (2016) 7 SCC
353] and recapitulated above, would be the safe method in
undertaking this exercise, with focus on the parameters as
B
suggested by Bilchitz, as this projects an ideal approach
that need to be adopted.”
(emphasis supplied)
67. Dr. Chandrachud, J., in K.S. Puttaswamy (Aadhaar-5J.)
C (supra), made observations on the test of proportionality that needs to
be satisfied under our Constitution for a violationof the right to privacy to
be justified, in the following words:
“1288. In K.S. Puttaswamy v. Union of India [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us
D (Chandrachud, J.), speaking for four Judges, laid down the tests
that would need to be satisfied under our Constitution for violations
of privacy to be justified. This included the test of proportionality:
(SCC p. 509, para 325)
“325. … A law which encroaches upon privacy will have to
E withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
F personal liberty must meet the threefold requirement of
(i) legality, which postulates the existence of law; (ii)
need, defined in terms of a legitimate State aim; and (iii)
proportionality which ensures a rational nexus between
the objects and the means adopted to achieve them.”
G The third principle [(iii) above] adopts the test of proportionality
to ensure a rational nexus between the objects and the means
adopted to achieve them. The essential role of the test of proportionality
is to enable the court to determine whether a legislative measure is
disproportionate in its interference with the fundamental right. In
determining this, the court will have regard to whether a less intrusive
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 869
[N. V. RAMANA, J.]

measure could have been adopted consistent with the object of the law A
and whether the impact of the encroachment on a fundamental right is
disproportionate to the benefit which is likely to ensue. The proportionality
standard must be met by the procedural and substantive aspects of the
law. Sanjay Kishan Kaul, J., in his concurring opinion, suggested
a four-pronged test as follows: (SCC p. 632, para 638)
B
“(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; C

(iv) There must be procedural guarantees against abuse
of such interference.”
(emphasis supplied)
68. After applying the aforesaid doctrine in deciding the D
constitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in
the K.S. Puttaswamy (Aadhaar-5J.) case (supra), reiterated the
fundamental precepts of doctrine of proportionality in relation to protection
of privacy interests while dealing with personal data:
“1324. The fundamental precepts of proportionality, as they E
emerge from decided cases can be formulated thus:
1324.1. A law interfering with fundamental rights must be in
pursuance of a legitimate State aim;
1324.2. The justification for rights-infringing measures that
interfere with or limit the exercise of fundamental rights F
and liberties must be based on the existence of a
rational connection between those measures, the
situation in fact and the object sought to be achieved;
1324.3. The measures must be necessary to achieve the
object and must not infringe rights to an extent G
greater than is necessary to fulfil the aim;
1324.4. Restrictions must not only serve legitimate purposes;
they must also be necessary to protect them; and

H
870 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 1324.5. The State must provide sufficient safeguards relating
to the storing and protection of centrally stored
data. In order to prevent arbitrary or abusive
interference with privacy, the State must guarantee that
the collection and use of personal information is based
on the consent of the individual; that it is authorised by
B
law and that sufficient safeguards exist to ensure that
the data is only used for the purpose specified at the
time of collection. Ownership of the data must at all
times vest in the individual whose data is collected. The
individual must have a right of access to the data
C collected and the discretion to opt out.”
(emphasis supplied)
69. This is the current state of the doctrine of proportionality as it
exists in India, wherein proportionality is the key tool to achieve judicial
balance. But many scholars are not agreeable to recognize proportionality
D equivalent to that of balancing.21
70. In view of the aforesaid discussion, we may summarize the
requirements of the doctrine of proportionality which must be followed
by the authorities before passing any order intending on restricting
fundamental rights of individuals. In the first stage itself, the possible
E goal of such a measure intended at imposing restrictions must be
determined. It ought to be noted that such goal must be legitimate.
However, before settling on the aforesaid measure, the authorities must
assess the existence of any alternative mechanism in furtherance of the
aforesaid goal. The appropriateness of such a measure depends on its
F implication upon the fundamental rights and the necessity of such
measure. It is undeniable from the aforesaid holding that only the
leastrestrictive measure can be resorted to by the State, taking into
consideration the facts and circumstances. Lastly, since the order has
serious implications on the fundamental rights of the affected parties,
the same should be supported by sufficient material and should be
G amenable to judicial review.
21
Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 C.L.J. 174
(hereinafter Rivers, “Proportionality”); Martin Luteran, Towards Proportionality as a
Proportion Between Means and Ends in Cian C. Murphy and Penny Green (eds.), Law
and Outsiders: Norms, Processes and “Othering” in the 21st Century (2011) (hereinafter
Luteran, “Towards Proportionality”); see also the contribution of Alison L. Young in
H Chapter 3 of this volume.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 871
[N. V. RAMANA, J.]

71. The degree of restriction and the scope of the same, both A
territorially and temporally, must stand in relation to what is actually
necessary to combat an emergent situation.
72. To consider the immediate impact of restrictions upon the
realization of the fundamental rights, the decision maker must prioritize
the various factors at stake. Such attribution of relative importance is B
what constitutes proportionality. It ought to be noted that a decision which
curtails fundamental rights without appropriate justification will be
classified as disproportionate.The concept of proportionality requires a
restriction to be tailored in accordance with the territorial extent of the
restriction, the stage of emergency, nature of urgency, duration of such
restrictive measure and nature of such restriction. The triangulation of a C
restriction requires the consideration of appropriateness, necessity and
the least restrictive measure before being imposed.
73. In this context, we need to note that the Petitioners have relied
on a recent judgment of the High Court of Hong Kong, in Kwok Wing
Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820 to D
state that the Hong Kong High Court has utilised the principle to declare
the “anti-mask” law as unconstitutional. In any case, we need not
comment on the law laid down therein, as this Court has independently
propounded the test of proportionality as applicable in the Indian context.
However, we may just point out that the proportionality test needs to be E
applied in the context of facts and circumstances, which are very different
in the case at hand.
74. Having observed the law on proportionality and reasonable
restrictions, we need to come back to the application of restrictions on
the freedom of speech over the internet. F
75. The respondent-State has vehemently opposed selective access
to internet services based on lack of technology to do the same. If such
a contention is accepted, then the Government would have a free pass
to put a complete internet blockage every time. Such complete blocking/
prohibition perpetually cannot be accepted by this Court. G
76. However, there is ample merit in the contention of the
Government that the internet could be used to propagate terrorism thereby
challenging the sovereignty and integrity of India. This Court would only
observe that achievement of peace and tranquillity within the erstwhile
State of Jammu and Kashmir requires a multifaceted approach without
H
872 SUPREME COURT REPORTS [2020] 1 S.C.R.

A excessively burdening the freedom of speech. In this regard the
Government is required to consider various options under Article 19(2)
of the Constitution, so that the brunt of exigencies is decimated in a
manner which burdens freedom of speech in a minimalist manner.
77. Having discussed the general constitutional ambit of the
B fundamental rights, proportionality and reasonable restrictions, and a
specific discussion on freedom of expression through the internet and its
restriction under Article 19(2), we now need to analyse the application
of the same in the present case.
F. INTERNET SHUTDOWN
C 78. Having observed the substantive law concerning the right to
internet and the restrictions that can be imposed on the same, we need
to turn our attention to the procedural aspect.
79. It must be noted that although substantive justice under the
fundamental rights analysis is important, procedural justice cannot be
D sacrificed on the altar of substantive justice. There is a need for procedural
justice in cases relating to restrictions which impact individuals’
fundamental rights as was recognized by this Court in the case of Maneka
Gandhi v. Union of India, (1978) 1 SCC 248 and the K. S.
Puttaswamy(Privacy-9J.) case (supra).
E 80. The procedural mechanism contemplated for restrictions on
the Internet, is twofold: first is contractual, relating to the contract signed
between Internet Service Providers and the Government, and the second
is statutory, under the Information Technology Act, 2000, the Criminal
Procedure Code, 1973 and the Telegraph Act. In the present case, we
F are concerned only with the statutory scheme available, particularly under
the Telegraph Act, and we will therefore confine our discussion mostly
to the same. However, as it would be apposite to distinguish between
the different statutory mechanisms, we would touch upon these cursorily.
81. Section 69A of the Information Technology Act, 2000 read
with the Information Technology (Procedures and Safeguards for
G
Blocking for Access of Information by Public) Rules, 2009 allows
blocking of access to information. This Court, in the Shreya Singhal
case (supra), upheld the constitutional validity of this Section and the
Rules made thereunder. It is to be noted however, that the field of
operation of this section is limited in scope.The aim of the section is not
H to restrict/block the internet as a whole, but only to block access to
ANURADHA BHASIN v. UNION OF INDIA & ORS. 873
[N. V. RAMANA, J.]

particular websites on the internet. Recourse cannot, therefore, be made A
by the Government to restrict the internet generally under this section.
82. Prior to 2017, any measure restricting the internet generally
or even shutting down the internet was passed under Section 144, Cr.P.C.,
a general provision granting wide powers to the Magistrates specified
therein to pass orders in cases of apprehended danger. In 2015, the High B
Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of
Gujarat, inWrit Petition (PIL) No. 191 of 2015, considered a challenge
to an order under Section 144, Cr.P.C. blocking access to mobile internet
services in the State of Gujarat. The High Court of Gujarat, vide order
dated 15.09.2015, upheld the restriction imposed by the Magistrate under
Section 144, Cr.P.C. While the Court did not undertake a full-fledged C
discussion of the power of the Magistrate to issue such restrictions under
Section 144, Cr.P.C., the Court observed as follows:
“9.…[U]nder Section 144 of the Code, directions may be
issued to certain persons who may be the source for
extending the facility of internet access. Under the D
circumstances, we do not find that the contention raised on behalf
of the petitioner that the resort to only Section 69A was available
and exercise of power under Section 144 of the Code was
unavailable, can be accepted.”
(emphasis supplied) E

A Special Leave Petition was filed against the above judgment of
the Gujarat High Court, being SLP (C) No. 601 of 2016, which
wasdismissed by this Court in limine on 11.02.2016.
83. The position has changed since 2017, with the passage of the F
Suspension Rules under Section 7 of the Telegraph Act. With the
promulgation of the Suspension Rules, the States are using the aforesaid
Rules to restrict telecom services including access to the internet.
84. The Suspension Rules lay down certain safeguards, keeping
in mind the fact that an action under the same has a large effect on the
G
fundamental rights of citizens. It may be mentioned here that we are not
concerned with the constitutionality of the Suspension Rules, and
arguments on the same were not canvassed by either side. As such, we
are limiting our discussion to the procedure laid down therein. Rule 2
lays down the procedure to be followed for the suspension of telecom
services, and merits reproduction in its entirety: H
874 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “2.(1) Directions to suspend the telecom services shall not be
issued except by an order made by the Secretary to the
Government of India in the Ministry of Home Affairs in the case
of Government of India or by the Secretary to the State
Government in-charge of the Home Department in the case of a
State Government (hereinafter referred to as the competent
B
authority), and in unavoidable circumstances, where obtaining of
prior direction is not feasible, such order may be issued by an
officer, not below the rank of a Joint Secretary to the Government
of India, who has been duly authorised by the Union Home
Secretary or the State Home Secretary, as the case may be:
C Provided that the order for suspension of telecom services,
issued by the officer authorised by the Union Home Secretary or
the State Home Secretary, shall be subject to the confirmation
from the competent authority within 24 hours of issuing such order:
Provided further that the order of suspension of telecom
D services shall cease to exist in case of failure of receipt of
confirmation from the competent authority within the said period
of 24 hours.
(2) Any order issued by the competent authority under sub-rule
(1) shall contain reasons for such direction and a copy of such
E order shall be forwarded to the concerned Review Committee
latest by next working day.
(3) The directions for suspension issued under sub-rule (1) shall
be conveyed to designated officers of the telegraph authority or
to the designated officers of the service providers, who have been
F granted licenses under section 4 of the said Act, in writing or by
secure electronic communication by an officer not below the rank
of Superintendent of Police or of the equivalent rank and mode of
secure electronic communication and its implementation shall be
determined by the telegraph authority.
G (4) The telegraph authority and service providers shall designate
officers in every licensed service area or State or Union territory,
as the case may be, as the nodal officers to receive and handle
such requisitions for suspension of telecom services.
(5) The Central Government or the State Government, as the
H case may be, shall constitute a Review Committee.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 875
[N. V. RAMANA, J.]

(i) The Review Committee to be constituted by the Central A
Government shall consist of the following, namely:-
(a) Cabinet Secretary-Chairman;
(b) Secretary to the Government of India In-charge, Legal
Affairs-Member;
B
(c) Secretary to the Government, Departmentof
Telecommunications -Member.
(ii) The Review Committee to be constituted by the State
Government shall consist of the following, namely:-
(a) Chief Secretary-Chairman; C
(b) Secretary Law or Legal Remembrancer In-Charge, Legal
Affairs-Member;
(c) Secretary to the State Government (other than the Home
Secretary) -Member.
D
(6) The Review Committee shall meet within five working days
of issue of directions for suspension of services due to public
emergency or public safety and record its findings whether the
directions issued under sub-rule (1) are in accordance with the
provisions of sub-section (2) of section 5 of the said Act.”
E
85. Rule 2(1) specifies the competent authority to issue an order
under the Suspension Rules, who in ordinary circumstances would be
the Secretary to the Ministry of Home Affairs, Government of India, or
in the case of the State Government, the Secretary to the Home
Department of the State Government. The sub-rule also provides that in
certain “unavoidable” circumstances an officer, who is duly authorised, F
not below the rank of a Joint Secretary, may pass an order suspending
services. The two provisos to Rule 2(1) are extremely relevant herein,
creating an internal check as to orders which are passed by an authorised
officer in “unavoidable” circumstances, as opposed to the ordinary
mechanism envisaged, which is the issuing of the order by the competent G
authority. The provisos together provide that the orders passed by duly
authorised officers in “unavoidable” circumstances need to be confirmed
by the competent authority within twenty-four hours, failing which, as
perthe second proviso, the order of suspension will cease to exist. The
confirmation of the order by the competent authority is therefore essential,
H
876 SUPREME COURT REPORTS [2020] 1 S.C.R.

A failing which the order passed by a duly authorised officer will
automatically lapse by operation of law.
86. Rule 2(2) is also extremely important, as it lays down twin
requirements for orders passed under Rule 2(1). First, it requires that
every order passed by a competent authority under Rule 2(1) must be a
B reasoned order. This requirement must be read to extend not only to
orders passed by a competent authority, but also to those orders passed
by an authorised officer which is to be sent for subsequent confirmation
to the competent authority. The reasoning of the authorised officer should
not only indicate the necessity of the measure but also what the
“unavoidable” circumstance was which necessitated his passing the order.
C The purpose of the aforesaid rule is to integrate the proportionality analysis
within the framework of the Rules.
87. Only in such an event would the requirement of confirmation
by the competent authority have any meaning, as it would allow the
competent authority to properly consider the action taken by the
D authorised officer. Further, the confirmation must not be a mere formality,
but must indicate independent application of mind by the competent
authority to the order passed by the authorised officer, who must also
take into account changed circumstances if any, etc. After all, it is the
competent authority who has been given the power under the Suspension
E Rules to suspend telecom services, with the authorised officer acting
under the Suspension Rules only due to some exigent circumstances.
88. The second requirement under Rule 2(2) is the forwarding of
the reasoned order of the competent authority to a Review Committee
which has been set up under the Suspension Rules, within one working
F day. The composition of the Review Committee is provided under Rule
2(5), with two distinct review committees contemplated for the Union
and the State, depending on the competent authority which issued the
order under Rule 2(1). Rule 2(6) is the final internal check under the
Suspension Rules with respect to the orders issued thereunder. Rule
2(6) requires the concerned Review Committee to meet within five
G working days of issuance of the order suspending telecom services, and
record its findings about whether the order issued under the Suspension
Rules is in accordance with the provisions of the main statute, viz., Section
5(2) of the Telegraph Act.
89. This last requirement, of the orders issued under the Rules
H being in accordance with Section 5(2), Telegraph Act, is very relevant to
ANURADHA BHASIN v. UNION OF INDIA & ORS. 877
[N. V. RAMANA, J.]

understand the circumstances in which the suspension orders may be A
passed. Section 5(2), Telegraph Act is as follows:
“5. Power for Government to take possession of licensed
telegraphs and to order interception of messages
xxx
B
(2) On the occurrence of any public emergency, or in the interest
of the public safety, the Central Government or a State Government
or any officer specially authorised in this behalf by the Central
Government or a State Government may, if satisfied that it is
necessary or expedient so to do in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations C
with foreign states or public order or for preventing incitement to
the commission of an offence, for reasons to be recorded in writing,
by order, direct that any message or class of messages to or from
any person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any D
telegraph, shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government making the order
or an officer thereof mentioned in the order:
Provided that the press messages intended to be published
in India of correspondents accredited to the Central Government E
or a State Government shall not be intercepted or detained, unless
their transmission has been prohibited under this sub-section.”
90. This Court has had prior occasion to interpret Section 5 of the
Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of
India, (1976) 2 SCC 128, a Four-Judge Bench of this Court interpreted F
Section 5 of the Telegraph Act and observed as follows:
“13.Section 5(1) if properly construed, does not confer unguided
and unbridled power on the Central Government/State
Government/ specially authorised officer to take possession of
any telegraphs. Firstly, the occurrence of a “public
G
emergency” is the sine qua non for the exercise of power
under this section. As a preliminary step to the exercise of
further jurisdiction under this section the Government or the
authority concerned must record its satisfaction as to the existence
of such an emergency. Further, the existence of the emergency
which is a pre-requisite for the exercise of power under this section, H
878 SUPREME COURT REPORTS [2020] 1 S.C.R.

A must be a “public emergency” and not any other kind of
emergency. The expression public emergency has not been defined
in the statute, but contours broadly delineating its scope and
features are discernible from the section which has to be read as
a whole. In sub-section (1) the phrase ‘occurrence of any
public emergency’ is connected with and is immediately
B
followed by the phrase “or in the interests of the public
safety”. These two phrases appear to take colour from each
other. In the first part of sub-section (2) those two phrases
again occur in association with each other, and the context
further clarifies with amplification that a “public
C emergency” within the contemplation of this section is one
which raises problems concerning the interest of the public
safety, the sovereignty and integrity of India, the security
of the State, friendly relations with foreign States or public
order or the prevention of incitement to the commission of
an offence.It is in the context of these matters that the appropriate
D
authority has to form an opinion with regard to the occurrence of
a public emergency with a view to taking further action under this
section...”
(emphasis supplied)
E 91. The aforementioned case was followed in People’s Union
for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, in the
context of phone-tapping orders passed under Section 5(2) of the
Telegraph Act, wherein this Court observed as follows:
“29. The first step under Section 5(2) of the Act, therefore, is the
F occurrence of any public emergency or the existence of a public
safety interest. Thereafter the competent authority under Section
5(2) of the Act is empowered to pass an order of interception
after recording its satisfaction that it is necessary or expedient so
to do in the interest of (i) sovereignty and integrity of India, (ii)
the security of the State, (iii) friendly relations with foreign States,
G (iv) public order or (v) for preventing incitement to the commission
of an offence. When any of the five situations mentioned above
to the satisfaction of the competent authority require then the said
authority may pass the order for interception of messages by
recording reasons in writing for doing so.”
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 879
[N. V. RAMANA, J.]

92. Keeping in mind the wordings of the section, and the above A
two pronouncements of this Court, what emerges is that the pre-requisite
for an order to be passed under this sub-section, and therefore the
Suspension Rules, is the occurrence of a “public emergency” or for it to
be “in the interest of public safety”. Although the phrase “public
emergency” has not been defined under the Telegraph Act, it has been
B
clarified that the meaning of the phrase can be inferred from its usage in
conjunction with the phrase “in the interest of public safety” following it.
The Hukam Chand Shyam Lal case (supra) further clarifies that the
scope of “public emergency” relates to the situations contemplated under
the sub-section pertaining to “sovereignty and integrity of India, the
security of the State, friendly relations with foreign states or public C
order or for preventing incitement to the commission of an offence”.
93. The word ‘emergency’ has various connotations. Everyday
emergency, needs to be distinguished from the type of emergency wherein
events which involve, or mightinvolve, serious and sometimes widespread
risk of injury or harm to members of the public or the destruction of, or D
serious damage to, property. Article 4 of the International Covenant on
Civil and Political Rights, notes that ‘[I]n time of public emergency
which threatens the life of the nation and the existence of which is
officially proclaimed...’. Comparable language has also been used in
Article 15 of the European Convention on Human Rights which says-
“In time of war or other public emergency threatening the life of the E
nation”. We may only point out thatthe ‘public emergency’ is required
to be of serious nature, and needs to be determined on a case to case
basis.
94. The second requirement of Section 5(2) of the Telegraph Act
is for the authority to be satisfied that it is necessary or expedient to pass F
the orders in the interest of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign states or public order
or for preventing incitement to the commission of an offence, and must
record reasons thereupon.The term ‘necessity’ and ‘expediency’ brings
along the stages an emergency is going to pass through usually. A public G
emergency usually would involve different stages and the authorities
are required to have regards to the stage, before the power can be
utilized under the aforesaid rules. The appropriate balancing of the factors
differs, when considering the stages of emergency and accordingly, the
authorities are required to triangulate the necessity of imposition of such
restriction after satisfying the proportionality requirement. H
880 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 95. A point canvassed by the learned counsel for the Petitioner,
Ms. Vrinda Grover, with regard to the interpretation of the proviso to
Section 5(2) of the Telegraph Act. The proviso to the section specifies
that a class of messages, i.e., press messages intended to be published
in India of correspondents accredited to the Central Government or a
State Government, will be treated differently from other classes of
B
messages. The learned counsel contended that this separate classification
necessitates that an order interfering with the press would be in
compliance with Section 5(2) of the Telegraph Act only if it specifically
states that the press is also to be restricted. However, the aforesaid
interpretation could not be supported by the petitioner with any judgments
C of this Court.
96. It must be noted that although the Suspension Rules does not
provide for publication or notification of the orders, a settled principle of
law, and of natural justice, is that an order, particularly one that affects
lives, liberty and property of people, must be made available. Any law
D which demands compliance of the people requires to be notified directly
and reliably. This is the case regardless of whether the parent statute or
rule prescribes the same or not. We are therefore required to read in the
requirement of ensuring that all the orders passed under the Suspension
Rules are made freely available, through some suitable mechanism. [See
B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658]
E
97. The above requirement would further the rights of an affected
party to challenge the orders, if aggrieved. Judicial review of the orders
issued under the Suspension Rules is always available, although no
appellate mechanism has been provided, and the same cannot be taken
away or made ineffective. An aggrieved person has the constitutional
F right to challenge the orders made under the Suspension Rules, before
the High Court under Article 226 of the Constitution or other appropriate
forum.
98. We also direct that all the above procedural safeguards, as
elucidated by us, need to be mandatorily followed. In this context, this
G Court in the Hukam Chand Shyam Lal case (supra), observed as
follows:
“18. It is well-settled that where a power is required to be
exercised by a certain authority in a certain way, it should
be exercised in that manner or not at all, and all other
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 881
[N. V. RAMANA, J.]

amodes (sic) of performance are necessarily forbidden. It is A
all the more necessary to observe this rule where power is of a
drastic nature...”
(emphasis supplied)
This applies with even more force considering the large public
impact on the right to freedom of speech and expression that such a B
broad-based restriction would have.
99. Lastly, we think it necessary to reiterate that complete broad
suspension of telecom services, be it the Internet or otherwise, being a
drastic measure, must be considered by the State only if ‘necessary’
and ‘unavoidable’. In furtherance of the same, the State must assess C
the existence of an alternate less intrusive remedy. Having said so, we
may note that the aforesaid Suspension Rules have certain gaps, which
are required to be considered by the legislature.
100. One of the gaps which must be highlighted relates to the
usage of the word “temporary” in the title of the Suspension D
Rules.Despite the above, there is no indication of the maximum duration
for which a suspension order can be in operation. Keeping in mind the
requirements of proportionality expounded in the earlier sectionof the
judgment, we are of the opinion that an order suspending the aforesaid
services indefinitely is impermissible. In this context,it is necessary to E
lay down some procedural safeguard till the aforesaid deficiency is cured
by the legislatureto ensure that the exercise of power under the
Suspension Rulesis not disproportionate. We therefore 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). The Review F
Committee must therefore not only look into the question of whether the
restrictions are still in compliance with the requirements of Section 5(2)
of the Telegraph Act, but must also look into the question of whether the
orders are still proportionate, keeping in mind the constitutional
consequences of the same. We clarify that looking to the fact that the G
restrictions contemplated under the Suspension Rules are temporary in
nature, the same must not be allowed to extend beyond that time period
which is necessary.
101. Coming to the orders placed before us regarding restrictions
on communication and Internet, there are eight orders that are placed
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882 SUPREME COURT REPORTS [2020] 1 S.C.R.

A before us. Four orders have been passed by the Inspector General of
Police, of the respective zone, while the other four orders are confirmation
orders passed by the Principal Secretary to the Government of Jammu
and Kashmir, Home Department, confirming the four orders passed by
the Inspector General of Police.
B 102. The learned Solicitor General has apprised the Bench that
the authorities are considering relaxation of the restrictions and in some
places the restrictions have already been removed. He also pointed that
the authorities are constantly reviewing the same. In this case, the
submission of the Solicitor General that there is still possibility of danger
to public safety cannot be ignored, as this Court has not been completely
C apprised about the ground situation by the State. We believe that the
authorities have to pass their orders based on the guidelines provided in
this case afresh. The learned Solicitor General had submitted, on a query
being put to him regarding the feasibility of a measure blocking only
social media services, that the same could not be done. However, the
D State should have attempted to determine the feasibility of such a
measure. As all the orders have not been placed before this Court and
there is no clarity as to which orders are in operation and which have
already been withdrawn, as well as the apprehension raised in relation
to the possibility of public order situations, we have accordingly moulded
the relief in the operative portion.
E
G. RESTRICTIONS UNDER SECTION 144 OF CRPC.
“As emergency does not shield the actions of Government
completely; disagreement does not justify destabilisation; the
beacon of rule of law shines always.”
F 103. The Petitioners have asserted that there were no disturbing
facts which warranted the imposition of restrictions under Section 144,
Cr.P.C. on 04.08.2019. They strenuously argued that there had to be a
circumstanceon 04.08.2019 showing that there would be an action which
will likely create obstruction, annoyance or injury to any person or will
G likely cause disturbance of the public tranquillity, and the Government
could not have passed such orders in anticipation or on the basis of a
mere apprehension.
104. In response, the learned Solicitor General, on behalf of the
Respondent, argued that the volatile history, overwhelming material
available even in the public domain about external aggressions, nefarious
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 883
[N. V. RAMANA, J.]

secessionist activities and the provocative statements given by political A
leaders, created a compelling situation which mandated passing of orders
under Section 144, Cr.P.C.
105. These contentions require us to examine the scope of Section
144, Cr.P.C, whichreads as follows:
“144. Power to issue order in urgent cases of nuisance or B
apprehended danger.—(1) In cases where, in the opinion of
a District Magistrate, a Sub-divisional Magistrate or any other
Executive Magistrate specially empowered by the State
Government in this behalf, there is sufficient ground for
proceeding under this sectionand immediate prevention or C
speedy remedy is desirable, such Magistrate may, by a written
order stating the material facts of the case and served in the
manner provided by Section 134, direct any person to abstain from
a certain act or to take certain order with respect to certain property
in his possession or under his management, if such Magistrate
considers that such direction is likely to prevent, or tends to prevent, D
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.
(2) An order under this section may, in cases of emergency or in
cases where the circumstances do not admit of the serving in due E
time of a notice upon the person against whom the order is directed,
be passed ex parte.
(3) An order under this section may be directed to a particular
individual, or to persons residing in a particular place or area, or to
the public generally when frequenting or visiting a particular place F
or area.
(4) No order under this section shall remain in force for more
than two months from the making thereof:
Provided that, if the State Government considers it necessary so
G
to do for preventing danger to human life, health or safety or for
preventing a riot or any affray, it may, by notification, direct that
an order made by a Magistrate under this section shall remain in
force for such further period not exceeding six months from the
date on which the order made by the Magistrate would have, but
for such order, expired, as it may specify in the said notification. H
884 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (5) Any Magistrate may, either on his own motion or on the
application of any person aggrieved, rescind or alter any order
made under this section, by himself or any Magistrate subordinate
to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the
B application of any person aggrieved, rescind or alter any order
made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6)
is received, the Magistrate, or the State Government, as the case
may be, shall afford to the applicant an early opportunity of
C appearing before him or it, either in person or by pleader and
showing cause against the order; and if the Magistrate or the
State Government, as the case may be, rejects the application
wholly or in part, he or it shall record in writing the reasons for
so doing.
D 106. Section 144, Cr.P.C. is one of the mechanismsthat enable
the State to maintain public peace. It forms part of the Chapter in the
Criminal Procedure Code dealing with “Maintenance of Public Order
and Tranquillity” and is contained in the sub-chapter on “urgent cases
of nuisance or apprehended danger”. The structure of the provision
shows that this power can only be invoked in “urgent cases of nuisance
E or apprehended danger”.
107. Section 144, Cr.P.C. enables the State to take preventive
measures to deal with imminent threats to public peace. It enables the
Magistrate to issue a mandatory order requiring certain actions to be
undertaken, or a prohibitory order restraining citizens from doing certain
F things. But it also provides for several safeguards to ensure that the
power is not abused, viz.- prior inquiry before exercising this power,
setting out material facts for exercising this power and modifying/
rescinding the order when the situation so warrants.
108. The aforesaid safeguards in Section 144, Cr.P.C. are discussed
G below and deserve close scrutiny.
(a) Prior Inquiry before issuing 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
H provision i.e. the order is likely to prevent obstruction,
ANURADHA BHASIN v. UNION OF INDIA & ORS. 885
[N. V. RAMANA, J.]

annoyance or injury to any person lawfully employed or A
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 B
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 C
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 anorder under Section
144, Cr.P.C. D
(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 E
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 F
restrictions—theorder 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. G
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. H
886 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (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
B
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.
C 109. Section 144, Cr.P.C. has been the subject matter of several
Constitution Bench rulings and we will briefly examine them. The
constitutional validity of Section 144, Cr.P.C. under the predecessor of
the 1898 Act came up for the first time before the Constitution Bench of
this Court in Babulal Parate case (supra). Repelling the contention
D that it is an infringement of the fundamental right of assembly, this Court
upheld the provision due to the various safeguards inbuilt under Section
144, Cr.P.C. This Court opined that:
a. Section 144, Cr.P.C does not confer arbitrary power on the
Magistrate, since it must be preceded by an inquiry.
E b. Although Section 144, Cr.P.C confers wide powers, it can
only be exercised in an emergency, and for the purpose of
preventing obstruction and annoyance or injury to any person
lawfully employed. Section 144, Cr.P.C is not an unlimited
power.
F c. The Magistrate, while issuing an order, has to state the material
facts upon which it is based. Since the order states the relevant
facts, the High Court will have relevant material to consider
whether such material is adequate to issue Section 144, Cr.P.C
order. While considering such reasons, due weight must be
G given to the opinion of the District Magistrate who is
responsible for the maintenance of public peace in the district.
d. This power can be exercised even when the Magistrate
apprehends danger. It is not just mere “likelihood” or a
“tendency”, but immediate prevention of particular acts to
counteract danger.
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 887
[N. V. RAMANA, J.]

e. Even if certain sections of people residing in the particular A
area are disturbing public order, the Magistrate can pass an
order for the entire area as it is difficult for the Magistrate to
distinguish between members of the public and the people
engaging in unlawful activity. However, any affected person
can always apply to the Magistrate under Section 144(4),
B
Cr.P.C. seeking exemption or modification of the order to
permit them to carry out any lawful activity.
f. If any person makes an application for modification or
alteration of the order, the Magistrate has to conduct a judicial
proceeding by giving a hearing, and give the reasons for the
decision arrived at. C

g. The order of the Magistrate under Section144, Cr.P.C is
subject to challenge before the High Court. The High Court’s
revisionary powers are wide enough to quash an order which
cannot be supported by the materials upon which the order is
supposed to be based. D

h. If any prosecution is launched for non-compliance of an order
issued under Section 144, Cr.P.C., the validity of such an order
under Section 144, Cr.P.C.can be challenged even at that stage.
110. The validity of the Section 144(6) under the 1898 Act again E
came up for consideration before a Bench of five Judges in State of
Bihar v. Kamla Kant Misra, (1969) 3 SCC 337. The majority judgment
declared the latter part of Section 144(6), Cr.P.C as it then existed, which
enabled the State Government to extend an order passed under Section
144, Cr.P.C. indefinitely, as unconstitutional, since it did not provide
limitations on the duration of the order and no mechanism was provided F
therein to make a representation against the duration of the order. Under
the 1973 Act, a time limit has been prescribed on the maximum duration
of the order.
111. A Bench of seven Judges in the Madhu Limaye case (supra)
was constituted to re-consider the law laid down in Babulal Parate G
(supra) and the constitutional validity of Section 144, Cr.P.C. This Court,
while affirming the constitutional validity of Section 144, Cr.P.C. reiterated
the safeguards while exercising the power under Section 144, Cr.P.C.
The Court highlighted that the power under Section 144, Cr.P.C. must
be:
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888 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (a) exercised in urgent situations to prevent harmful occurrences.
Since this power can be exercised absolutely and even ex
parte, “the emergency must be sudden and the consequences
sufficiently grave”
(b) exercised in a judicial manner which can withstand judicial
B scrutiny.
This Court observed that:
“24. The gist of action under Section 144 is the urgency of the
situation, its efficacy in the likelihood of being able to prevent
some harmful occurrences. As it is possible to act absolutely and
C even ex parte. it is obvious that the emergency must be
sudden and the consequences sufficiently grave. Without it
the exercise of power would have no justification. It is not an
ordinary power flowing from administration but a power
used in a judicial manner and which can stand further judicial
D scrutiny in the need for the exercise of the power, in its
efficacy and in the extent of its application. There is no general
proposition that an order under Section 144, Criminal Procedure
Code cannot be passed without taking evidence: …
These fundamental facts emerge from the way the occasions for
E the exercise of the power are mentioned. Disturbances of public
tranquillity, riots and affray lead to subversion of public order unless
they are prevented in time. Nuisances dangerous to human life,
health or safety have no doubt to be abated and prevented. …..In
so far as the other parts of the section are concerned the key-
note of the power is to free society from menace of serious
F disturbances of a grave character. The section is directed against
those who attempt to prevent the exercise of legal rights by others
or imperil the public safety and health. If that be so the matter
must fall within the restrictions which the Constitution itself
visualizes as permissible in the interest of public order, or in the
G interest of the general public. We may say, however, that
annoyance must assume sufficiently grave proportions to
bring the matter within interests of public order.”
(emphasis supplied)
112. Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1
H SCC 226, this Court, in deciding a review petition, elaborated on the
ANURADHA BHASIN v. UNION OF INDIA & ORS. 889
[N. V. RAMANA, J.]

circumstances in which the power under Section 144, Cr.P.C. can be A
exercised. This Court held as under:
“3. ...It is only where it is not practicable to allow them to
do something which is quite legal, having regard to the state
of excited feelings of persons living in an area or frequenting
a locality, that any action may be taken under Section 144 B
of the Criminal Procedure Code which may interfere with
what are, otherwise, completely legal and permissible
conduct and speech.
4.….It may however be noted that the Magistrate is not concerned
with individual rights in performing his duty under Section 144 but C
he has to determine what may be reasonably necessary or
expedient in a situation of which he is the best judge.
5.… If public peace and tranquillity or other objects mentioned
there are not in danger the Magistrate concerned cannot act under
Section 144. He could only direct parties to go to the proper forum. D
On the other hand, if the public safety, peace, or tranquillity are in
danger, it is left to the Magistrate concerned to take proper action
under Section 144, Cr.P.C.”
(emphasis supplied)
113. In Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC E
71, this Court held that an order passed under Section 144, Cr.P.C. is an
executive order which can be questioned in exercise of writ jurisdiction
under Article 226 of the Constitution. The Court reiterated the
circumstances in which the power can be exercised. The Court observed
as under: F
“27. The entire basis of action under Section 144 is provided by
the urgency of the situation and the power thereunder is
intended to be availed of for preventing disorders,
obstructions and annoyances with a view to secure the
public weal by maintaining public peace and tranquillity.
G
Preservation of the public peace and tranquillity is the
primary function of the Government and the aforesaid power
is conferred on the executive magistracy enabling it to
perform that function effectively during emergent situations
and as such it may become necessary for the Executive
Magistrate to override temporarily private rights and in a H
890 SUPREME COURT REPORTS [2020] 1 S.C.R.

A given situation the power must extend to restraining
individuals from doing acts perfectly lawful in themselves,
for, it is obvious that when there is a conflict between the public
interest and private rights the former must prevail. ….In other
words, the Magistrate’s action should be directed against
the wrong-doer rather than the wronged. Furthermore, it
B
would not be a proper exercise of discretion on the part of
the Executive Magistrate to interfere with the lawful
exercise of the right by a party on a consideration that those
who threaten to interfere constitute a large majority and it
would be more convenient for the administration to impose
C restrictions which would affect only a minor section of the
community rather than prevent a larger section more
vociferous and militant.
33. ...It is only in an extremely extraordinary situation, when
other measures are bound to fail, that a total prohibition or
D suspension of their rights may be resorted to as a last
measure.”
(emphasis supplied)
114. Again, in Acharya Jagdishwaranand Avadhuta v. Commr.
of Police,Calcutta, (1983) 4 SCC 522, a Bench of three Judges
E expressed doubts about the dicta in the Gulam Abbas case (supra) on
thenature of the order under Section 144, Cr.P.C. but reiterated that
repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
This Court observed as follows:
“16…. The scheme of that section does not contemplate
F repetitive orders and in case the situation so warrants steps
have to be taken under other provisions of the law such as Section
107 or Section 145 of the Code when individual disputes are raised
and to meet a situation such as here, there are provisions to be
found in the Police Act. If repetitive orders are made it would
G clearly amount to abuse of the power conferred by Section
144 of the Code.”
(emphasis supplied)
115. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1, this
Court emphasised the safeguards under Section 144, Cr.P.C. and the
H circumstances under which such an order can be issued.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 891
[N. V. RAMANA, J.]

116. The learned counsel on behalf of the Petitioners vehemently A
contested the power of the Magistrate to pass the aforesaid orders under
Section 144, Cr.P.C. as there existed no incumbent situation of emergency.
It was argued that such orders passed in mere anticipation or apprehension
cannot be sustained in the eyes of law. As explained above, the power
under Section 144, Cr.P.C. is a preventive power to preserve public
B
order. In Babulal Parate case (supra), this Court expressly clarified
that this power can be exercised even where there exists an apprehension
of danger. This Court observed as under:
“25. The language of Section 144 is somewhat different. The
test laid down in the section is not merely “likelihood” or
“tendency”. The section says that the Magistrate must be satisfied C
that immediate prevention of particular acts is necessary to
counteract danger to public safety etc. The power conferred
by the section is exercisable not only where present danger
exists but is exercisable also when there is an apprehension
of danger.” D
(emphasis supplied)
117. In view of the language of the provision and settled law, we
are unable to accept the aforesaid contention.
118. Further, learned senior counsel Mr. Kapil Sibal expressed his E
concern that in the future any State could pass such type of blanket
restrictions, for example, to prevent opposition parties from contesting
or participating in elections. In this context, it is sufficient to note thatthe
power under Section 144, Cr.P.C. cannot be used as a tool to prevent
the legitimate expression of opinion or grievance or exercise of any
democratic rights. Our Constitution protects the expression of divergent F
views, legitimate expressions and disapproval, and this cannot be the
basis for invocation of Section 144, Cr.P.C. unless there is sufficient
material to show that there is likely to be an incitement to violence or
threat to public safety or danger. It ought to be noted that provisions of
Section 144, Cr.P.C. will only be applicable in a situation of emergency G
and for the purpose of preventing obstruction and annoyance or injury to
any person lawfully employed [refer to Babulal Parate case (supra)].
It is enough to note that sufficient safeguards exist in Section 144, Cr.P.C.,
including the presence of judicial review challenging any abuse of power
under the Section, to allay the apprehensions of the petitioner.
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892 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 119. The Petitioners have also contended that ‘law and order’ is
of a narrower ambit than ‘public order’ and the invocation of ‘law and
order’ would justify a narrower set of restrictions under Section 144,
Cr.P.C.
120. In this context, it is pertinent for us to emphasize the holding
B rendered by a five-Judge Bench of this court in Ram Manohar Lohia
v. State of Bihar, AIR 1966 SC 740, wherein this Court emphasised the
difference between “public order” and “law and order” situation. This
Court observed as under:
“55. It will thus appear that just as “public order” in the rulings of
C this Court (earlier cited) was said to comprehend disorders of
less gravity than those affecting “security of State”, “law and
order” also comprehends disorders of less gravity than those
affecting “public order”. One has to imagine three concentric
circles. Law and order represents the largest circle within
which is the next circle representing public order and the
D smallest circle represents security of State. It is then easy to
see that an act may affect law and order but not public order just
as an act may affect public order but not security of the State. By
using the expression “maintenance of law and order” the District
Magistrate was widening his own field of action and was adding
E a clause to the Defence of India Rules.”
(emphasis supplied)
121. This Court therein held that a mere disturbance of law and
order leading to disorder may not necessarily lead to a breach of public
order. Similarly, the seven-Judge Bench in Madhu Limaye case (supra)
F further elucidated as to when and against whom the power under Section
144, Cr.P.C.can be exercised by the Magistrate. This Court held therein,
as under:
“24. The gist of action under Section 144 is the urgency of
the situation, its efficacy in the likelihood of being able to
G prevent some harmful occurrences. As it is possible to act
absolutely and even ex parte it is obvious that the emergency
must be sudden and the consequences sufficiently grave. Without
it the exercise of power would have no justification. It is not an
ordinary power flowing from administration but a power
used in a judicial manner and which can stand further judicial
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 893
[N. V. RAMANA, J.]

scrutiny in the need for the exercise of the power, in its A
efficacy and in the extent of its application…. Disturbances
of public tranquillity, riots and affray lead to subversion of
public order unless they are prevented in time. Nuisances
dangerous to human life, health or safety have no doubt to
be abated and prevented. We are, however, not concerned with
B
this part of the section and the validity of this part need not be
decided here. In so far as the other parts of the section are
concerned the key-note of the power is to free society from
menace of serious disturbances of a grave character. The section
is directed against those who attempt to prevent the
exercise of legal rights by others or imperil the public safety C
and health. If that be so the matter must fall within the
restrictions which the Constitution itself visualizes as
permissible in the interest of public order, or in the interest
of the general public. We may say, however, that annoyance
must assume sufficiently grave proportions to bring the
D
matter within interests of public order.”
(emphasis supplied)
122. This Court in Ramlila Maidan Incident, In re case (supra)
further enunciated upon the aforesaid distinction between a “public order”
and “law and order” situation: E
“44. The distinction between “public order” and “law and
order” is a fine one, but nevertheless clear. A restriction
imposed with “law and order” in mind would be least
intruding into the guaranteed freedom while “public order”
may qualify for a greater degree of restriction since public F
order is a matter of even greater social concern.
…
45. It is keeping this distinction in mind, the legislature, under
Section 144 CrPC, has empowered the District Magistrate, Sub-
Divisional Magistrate or any other Executive Magistrate, specially G
empowered in this behalf, to direct any person to abstain from
doing a certain act or to take action as directed, where sufficient
ground for proceeding under this section exists and immediate
prevention and/or speedy remedy is desirable. By virtue of
Section 144-A CrPC, which itself was introduced by Act 25
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894 SUPREME COURT REPORTS [2020] 1 S.C.R.

A of 2005 [Ed.: The Code of Criminal Procedure
(Amendment) Act, 2005.] , the District Magistrate has been
empowered to pass an order prohibiting, in any area within
the local limits of his jurisdiction, the carrying of arms in
any procession or the organising or holding of any mass
drill or mass training with arms in any public place, where it
B
is necessary for him to do so for the preservation of public
peace, public safety or maintenance of public order.…”
(emphasis supplied)
123. In view of the above, ‘law and order’, ‘public order’ and
C ‘security of State’ are distinct legal standards and the Magistrate must
tailor the restrictions depending on the nature of the situation. If two
families quarrel over irrigation water, it might breach law and order, but
in a situation where two communities fight over the same, the situation
might transcend into a public order situation. However, it has to be noted
that a similar approach cannot be taken to remedy the aforesaid two
D distinct situations. The Magistrate cannot apply a straitjacket formula
without assessing the gravity of the prevailing circumstances; the
restrictions must be proportionate to the situation concerned.
124. Learned senior counsel, Mr. Kapil Sibal also contended that
an order under Section 144, Cr.P.C. cannot be issued against the public
E generally andmust be specifically intended against the people or the group
which is apprehended to disturb the peace and tranquillity. This Court in
the Madhu Limaye case (supra), has clarified that such an order can
be passed against either a particular individual or the public in general.
This Court was aware that, at times, it may not be possible to distinguish
F between the subject of protection under these orders and the individuals
against whom these prohibitory orders are required to be passed:
“27.… Ordinarily the order would be directed against a person
found acting or likely to act in a particular way. A general order
may be necessary when the number of persons is so large
G that distinction between them and the general public cannot
be made without the risks mentioned in the section. A
general order is thus justified but if the action is too general,
the order may be questioned by appropriate remedies for
which there is ample provision in the law.”
(emphasis supplied)
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 895
[N. V. RAMANA, J.]

125. The counsel on behalf of the Petitioners have argued that A
the validity of the aforesaid restrictions has to be tested on its
reasonableness. The restrictions imposed must be proportionate to the
proposed/perceived threat. In the context of restrictions imposedby way
of orders passed under Section 144, Cr.P.C., this Court, in Ramlila
Maidan Incident case (supra), held that an onerous duty is cast upon
B
the concerned Magistrate to first assess the perceived threat and impose
the least invasive restriction possible. The concerned Magistrate is duty
bound to ensure that the restrictions should never be allowed tobe
excessive either in nature or in time. The relevant portion is extracted
below:
“39. There has to be a balance and proportionality between C
the right and restriction on the one hand, and the right and
duty, on the other. It will create an imbalance, if undue or
disproportionate emphasis is placed upon the right of a citizen
without considering the significance of the duty. The true source
of right is duty... D
…
58. Out of the aforestated requirements, the requirements of
existence of sufficient ground and need for immediate prevention
or speedy remedy is of prime significance. In this context, the
perception of the officer recording the desired/ E
contemplated satisfaction has to be reasonable, least
invasive and bona fide. The restraint has to be reasonable
and further must be minimal. Such restraint should not be
allowed to exceed the constraints of the particular situation
either in nature or in duration. The most onerous duty that is F
cast upon the empowered officer by the legislature is that the
perception of threat to public peace and tranquillity should be real
and not quandary, imaginary or a mere likely possibility.”
(emphasis supplied)
126. As discussed above, the decisions of this Court in the Modern G
Dental College case (supra) and K.S. Puttaswamy (Aadhaar-5J.)
case (supra), which brought the concept of proportionality into the fold,
equally apply to an order passed under Section 144, Cr.P.C.
127. The Petitioners also contended that orders passed under
Section 144, Cr.P.C., imposing restrictions, cannot be a subject matter of H
896 SUPREME COURT REPORTS [2020] 1 S.C.R.

A privilege. Moreover, material facts must be recorded in the order itself.
On the other hand, the learned Solicitor General argued that the
empowered officers were in the best position to know the situation on
the ground and accordingly the aforesaid orders were passed. There
existed sufficient speculation on the ground to suggest abrogation of
Article 370, and the respective Magistrates, being aware of the
B
circumstances, imposed the aforesaid restrictions in a periodic manner,
indicating due application of mind. The learned Solicitor General further
argued that this Court cannot sit in appeal over the order passed by the
magistrate, particularly when there is no imputation of mala fide.
128. To put a quietus to the aforesaid issue it is pertinent to
C reproduce and rely ona relevant extract from the Ramlila Maidan
Incident, In re case (supra):
“56. Moreover, an order under Section 144 CrPC being an
order which has a direct consequence of placing a
restriction on the right to freedom of speech and expression
D and right to assemble peaceably, should be an order in
writing and based upon material facts of the case. This would
be the requirement of law for more than one reason. Firstly, it is
an order placing a restriction upon the fundamental rights
of a citizen and, thus, may adversely affect the interests of
E the parties, and secondly, under the provisions of CrPC,
such an order is revisable and is subject to judicial review.
Therefore, it will be appropriate that it must be an order in
writing, referring to the facts and stating the reasons for
imposition of such restriction. In Praveen Bhai Thogadia
[(2004) 4 SCC 684: 2004 SCC (Cri) 1387], this Court took the
F view that the Court, while dealing with such orders, does not act
like an appellate authority over the decision of the official
concerned. It would interfere only where the order is patently
illegal and without jurisdiction or with ulterior motive and
on extraneous consideration of political victimisation by
G those in power. Normally, interference should be the
exception and not the rule.”
(emphasis supplied)
129. We may note that orders passed under Section 144, Cr.P.C.
have direct consequences upon the fundamental rights of the public in
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 897
[N. V. RAMANA, J.]

general. Such a power, if used in a casual and cavalier manner, would A
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-
B
notified. This Court, in the case of Babulal Parate (supra), 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. This Court held as under:
“9. Sub-section (1) confers powers not on the executive but on
certain Magistrates…Under sub-section (1) the Magistrate C
himself has to form an opinion that there is sufficient ground
for proceeding under this section and immediate prevention
or speedy remedy is desirable. Again the sub-section
requires the Magistrate to make an order in writing and
state therein the material facts by reason of which he is D
making the order thereunder. The sub-section further
enumerates the particular activities with regard to which the
Magistrate is entitled to place restraints.”
(emphasis supplied)
130. While passing orders under Section 144, Cr.P.C., it is E
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 F
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. Before we part, we need to caution
against the excessive utility of the proportionality doctrine in the matters
of national security, sovereignty and integrity. G
131. Although, the Respondents submitted that this Court cannot
sit in appeal or review the orders passed by the executive, particularly
those pertaining to law and order situation, the scope of judicial review
with respect to law and order issues has been settled by this Court. In
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898 SUPREME COURT REPORTS [2020] 1 S.C.R.

A State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC
684, this Court observed, specifically in the context of Section 144, Cr.P.C.,
as follows:
“6. Courts should not normally interfere with matters relating to
law and order which is primarily the domain of the administrative
B authorities concerned. They are by and large the best to assess
and to handle the situation depending upon the peculiar needs and
necessities within their special knowledge. ……Therefore,
whenever the authorities concerned in charge of law and
order find that a person’s speeches or actions are likely to
trigger communal antagonism and hatred resulting in
C fissiparous tendencies gaining foothold, undermining and
affecting communal harmony, prohibitory orders need
necessarily to be passed, to effectively avert such untoward
happenings.
7... If they feel that the presence or participation of any person in
D the meeting or congregation would be objectionable, for some
patent or latent reasons as well as the past track record of such
happenings in other places involving such participants, necessary
prohibitory orders can be passed. Quick decisions and swift as
well as effective action necessitated in such cases may not justify
E or permit the authorities to give prior opportunity or consideration
at length of the pros and cons. The imminent need to intervene
instantly, having regard to the sensitivity and perniciously perilous
consequences it may result in if not prevented forthwith, cannot
be lost sight of. The valuable and cherished right of freedom
of expression and speech may at times have to be subjected
F to reasonable subordination to social interests, needs and
necessities to preserve the very core of democratic life -
preservation of public order and rule of law. At some such
grave situation at least the decision as to the need and necessity
to take prohibitory actions must be left to the discretion of those
G entrusted with the duty of maintaining law and order, and
interposition of courts unless a concrete case of abuse or exercise
of such sweeping powers for extraneous considerations by the
authority concerned or that such authority was shown to act at
the behest of those in power, and interference as a matter of

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ANURADHA BHASIN v. UNION OF INDIA & ORS. 899
[N. V. RAMANA, J.]

course and as though adjudicating an appeal, will defeat the very A
purpose of legislation and legislative intent…”
(emphasis supplied)
132. It is true that we do not sit in appeal, however, the existence
of the power of judicial review is undeniable. We are of the opinion that
it is for the Magistrate and the State to make an informed judgement B
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 C
of this power.
133. 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 D
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 arepreventive/remedial.
However, if the authority is to consider imposition of restrictions over a
larger territorial area or fora longer duration, the threshold requirement E
is relatively higher.
134. 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 F
and the conclusion reached. Orders passed mechanically or in a cryptic
manner cannot be said to be orders passed in accordance with law.
135. During the course of hearing, on 26.11.2019, the learned
Solicitor General sought the permission of this Court to produce certain
confidential documents to be perused by this Court. However, he objected G
to revealing certain documents to the Petitioners, claiming sensitivity
and confidentiality. Learned senior counsel Mr. Kapil Sibal stated that
the Court could assume the existence of such intelligence inputs and
materials. In view of such stand, we have not gone into the adequacy of
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900 SUPREME COURT REPORTS [2020] 1 S.C.R.

A the material placed before this Court; rather, we have presumed existence
of the same.
136. One of the important criteria to test the reasonableness of
such a measure is to see if the aggrieved person has the right to make a
representation against such a restriction. It is a fundamental principle of
B law that no party can be deprived of his liberty without being afforded a
fair, adequate and reasonable opportunity of hearing. Therefore, in a
situation where the order is silent on the material facts, the person
aggrieved cannot effectively challenge the same. Resultantly, there exists
no effective mechanism to judicially review the same. [See State of
Bihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the same,
C it is imperative for the State to make such orders public so as to make
the right available under Section 144(5), Cr.P.C. a practical reality.
137. One thing to remember is that no mala fide has been alleged
by the Petitioners. It was not denied by the Petitioners that the State has
the power to pass such restrictive order. Additionally, the Respondents
D contended that the historical background of the State- cross border
terrorism, infiltration of militants, security issues, etc., cannot be forgotten
and must be kept in mind while testing the legality of the orders. Further,
the Respondent submitted that the orders were passed in the
aforementioned context and in the anticipated threat to law and order, to
E prevent any loss of life, limb and property. However, these orders do not
explain the aforesaid aspects.
138. Although the restrictions have been allegedly removed on
27.09.2019, thereby rendering the present exercise into a virtually
academic one, we cannot ignore non-compliance of law by the State.
F As learned senior counsel Mr. Kapil Sibal submitted,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
theGovernment.Hence, we direct that the authorities must follow the
principles laid down by this Court and uphold the rule of law.

G 139. It is contended by the Petitioners that while the
Respondentsstated that there are no prohibitory orders during the day
and there are certain restrictions in certain areas during the night, on the
ground, the situation is different as the police is still restricting the
movement of the people even during the day. If that is so, it is not proper
and correct for the State to resort to such type of acts. A Government, if
H
ANURADHA BHASIN v. UNION OF INDIA & ORS. 901
[N. V. RAMANA, J.]

it thinks that there is a threat to the law and order situation or any other A
such requirement, must follow the procedure laid down by law, taking
into consideration the rights of the citizens, and pass appropriate need-
based orders.In view of the same, appropriate directions are provided in
the operative part of this judgment.
140. Before parting we summarise the legal position on Section B
144, Cr.P.C 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 C
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 D
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 E
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 F
the least intrusive measure.
v. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
H. FREEDOM OF THE PRESS
141. The Petitioner in W.P. (C) No. 1031 of 2019 has filed the G
petition basing her contention on the following factual premise, as
averred:
13. Writ Petition (Civil) No. 1031 of 2019 was filed on
10-08-2019 under Article 32 of the Constitution of India by the
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902 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Executive Editor of the newspaper “Kashmir Times”, which
publishes two editions daily, one from Jammu and another from
Srinagar. The English newspaper, Kashmir Times, was founded
in 1954 as a news weekly. It was later converted to a daily
newspaper in 1962 and has regularly been in print and circulation
ever since. Kashmir Times is a widely read English newspaper in
B
Jammu and Kashmir, and also has significant readership in the
neighbouring States of Punjab, Delhi and Himachal Pradesh.
14. On 04-08-2019, sometime during the day, mobile phone
networks, internet services, and landline phones were all
discontinued in the Kashmir valley and in some districts of Jammu
C and Ladakh. No formal orders under which such action was taken
by the Respondents were communicated to the affected population,
including the residents of the Kashmir Valley. This meant that the
people of Kashmir were plunged into a communication blackhole
and an information blackout. The actions of the respondents have
D had a debilitating and crippling effect on newsgathering, reporting,
publication, circulation and information dissemination, and have
also resulted in freezing of web portals and news websites.
15. From the morning of 05-08-2019, with a heavy military
presence, barricades and severance of all communication links,
E the state of Jammu and Kashmir was placed under de facto
curfew. At the same time, on 05-08-2019, the Constitution
(Application to Jammu and Kashmir) order, 2019, C.O. 272 was
published in The Gazette of India, vide which under the powers
vested by Article 370(1) of the Constitution of India, Article 367(4)
was added to the Constitution. Also on 05-08-2019, the Jammu
F and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya
Sabha, and passed. On 06-08-2019, the said Bill was passed by
the Lok Sabha. The President’s assent was given to the Bill on
09-08-2019. The Gazette Notification, dt. 09-08-2019 states that
the Jammu and Kashmir Reorganisation Act, 2019, will come into
G effect from 31st October, 2019, and that there shall be a new Union
Territory of Jammu and Kashmir. All of this was carried out while
the State of Jammu and Kashmir was in a lockdown and silenced
through a communication shutdown.
16. In such Circumstances the Kashmir Times’ Srinagar edition
H could not be distributed on 05-08-2019 and it could not be published
ANURADHA BHASIN v. UNION OF INDIA & ORS. 903
[N. V. RAMANA, J.]

thereafter from 06-08-2019 to 11-10-2019, as newspaper A
publication necessarily requires news gathering by reporters
traveling across the Valley and unhindered interaction with public
and officials. Due to the indiscriminate lockdown-including
communication and internet blackout- and severe curbs on
movement enforced by the respondents, the Petitioner was
B
prevented and hindered from carrying out her profession and work.
Even after 11-10-2019 only a truncated copy of the newspaper is
being published because of the severe restrictions in place even
today (internet services and SMS services are completely shut
down even after 115 days). The new portal/website is frozen till
date. C
142. There is no doubt that the importance of the press is well
established under Indian Law. The freedom of the press is a requirement
in any democratic society for its effective functioning. The first case
which dealt with the freedom of the press can be traced back to Channing
Arnold v. The Emperor, (1914) 16 Bom LR 544, wherein the Privy D
Council stated that:
“36. The freedom of the journalist is an ordinary part of the freedom
of the subject and to whatever length, the subject in general may
go, so also may the journalist, but apart from the statute law his
privilege is no other and no higher. The range of his assertions, his E
criticisms or his comments is as wide as, and no wider than that
of any other subject.”
143. During the drafting of our Constitution, B. N. Rau, while
commenting on the amendments by Jaya Prakash Narayan, who had
proposed a separate freedom of press, had commented in the following F
manner:
“It is hardly necessary to provide specifically for the freedom of
the press as freedom of expression provided in sub-clause (a) of
clause (1) of article 13 will include freedom of the press...”
144. Thereafter, many judgments of this Court including Bennett G
Coleman v. Union of India, (1972) 2 SCC 788, Indian Express
(supra), Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842
have expounded on the right of freedom of press and have clearly
enunciated the importance of the aforesaid rights in modern society. In
view of the same, there is no doubt that freedom of the press needs to
H
be considered herein while dealing with the issue of the case at hand.
904 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 145. From the aforesaid factual averment, we may note that the
Petitioner in W.P. (C) No. 1031 of 2019, with respect to the present
issue, does not impugn any specific order of the government restricting
the freedom of the press or restricting the content of the press. The
allegation of the aforementioned Petitioner is that the cumulative effect
of various other restrictions, such as the imposition of Section 144, Cr.P.C.
B
and restriction on internet and communication, has indirectly affected
the freedom of the press in the valley.
146. 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
C cannot be transfer of information or requisite discussion for a democratic
society. Squarely however, the contention of the Petitioner restson the
chilling effects alleged to be produced by the imposition of restrictions
as discussed above.
147. Chilling effect has been utilized in Indian Jurisprudence as a
D fairly recent concept. Its presence in the United States of America can
be traced to the decision in Weiman v. Updgraff, 344 U.S. 183. We
may note that the argument of chilling effect has been utilized in various
contexts, from being purely an emotive argument to a substantive
component under the free speech adjudication. The usage of the aforesaid
E principle is chiefly adopted for impugning an action of the State, which
may be constitutional, but which imposes a great burden on the free
speech. We may note that the argument of chilling effect, if not tempered
judicially, would result in a “self-proclaiming instrument”.
148. The principle of chilling effect was utilized initially in a limited
F context, that a person could be restricted from exercising his protected
right due to the ambiguous nature of an overbroad 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.22 This analysis was replicated in
the context of privacy and internet usage in a regulatory set up by Daniel
G J. Solove. Thesepanopticon concerns have been accepted in the case of
K.S. Puttaswamy (Privacy-9J.) (supra).
149. We need to concern ourselves herein as to theoretical question
of drawing lines as to when a regulation stops short of impinging upon
22
Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling
H Effect (1978).
ANURADHA BHASIN v. UNION OF INDIA & ORS. 905
[N. V. RAMANA, J.]

free speech. A regulatory legislation will have a direct or indirect impact A
on various rights of different degrees. Individual rights cannot be viewed
as silos, rather they should be viewed in a cumulative manner which
may be affected in different ways. The technical rule of causal link
cannot be made applicable in the case of human rights. Human rights
are an inherent feature of every human and there is no question of the
B
State not providing for these rights. In one sense, the restrictions provided
under Article 19(2) of the Constitution follow a utilitarian approach
wherein individualism gives way for commonality of benefit, if such
restrictions are required and demanded by law. In this context, the test
of ‘direct impact’ as laid down in A.K Gopalan v. State of Madras,
AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee C
Cooper v. Union of India, 1970 (1) SCC 248, wherein the test of ‘direct
and inevitable consequence’ was propounded. As this is not a case wherein
a detailed analysis of chilling effectis required for the reasons given
below, we leave the question of law open as to the appropriate standard
for establishing causal link in a challenge based on chilling effect.
D
150. The widening of the ‘chilling effect doctrine’ has always
been viewed with judicial scepticism. At this juncture, we 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 E
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.” F

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 G
present case. [refer to Clapper v Amnesty Int’l, USA, 568 U.S. 113
(2013)]
151. In this context, one possible test of chilling effect is
comparative harm. In this frame-work, the Court is required to see
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906 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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
B
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.
On the other hand, the learned Solicitor General has submitted that there
were other newspapers which were running during the aforesaid time
period. In view of these facts, and considering that the aforesaid Petitioner
C has now resumed publication, we do not deemit fit to indulge more in the
issue than to state that responsible Governments are required to respect
the freedom of the press at all times. Journalists are to be accommodated
in reporting and there is no justification for allowing a sword of Damocles
to hang over the press indefinitely.
D I. CONCLUSION
152. In this view, we issue the following directions:
a. The Respondent State/competent authoritiesare directed to
publish all orders in force and any future orders under Section
144, Cr.P.C and for suspension of telecom services, including
E 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
F 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
G 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
H not extend beyond necessary duration.
ANURADHA BHASIN v. UNION OF INDIA & ORS. 907
[N. V. RAMANA, J.]

e. Any order suspending internet under the Suspension Rules is A
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 B
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 C
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 D
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.
j. The power under Section 144, Cr.P.C., being remedial as well E
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. F
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 G
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.
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908 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 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
B 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.
C 153. The Writ Petitions are disposed of in the afore-stated terms.
All pending applications are also accordingly disposed of.

Ankit Gyan Writ Petitions disposed of.

D

E

F

G

H