The court held that Section 144 CrPC cannot be used as a ‘tool to prevent the legitimate expression of opinions or grievances.’
New Delhi: In a major blow to the Centre, the Supreme Court on Friday said that access to the Internet is a fundamental right all citizens and asked the government to review all restrictions in Kashmir within a week.
The court also ruled that Section 144 CrPc cannot be used by the authorities as a tool to prevent legitimate expression of opinions or grievances by the people.
Taking a dim view of the Centre subjecting people in Kashmir to a lockdown and communication blackout, including internet services, the court said Friday that it was “impermissible” to suspend Internet services indefinitely.
The court held that Section 144 CrPC cannot be used as a “tool to prevent the legitimate expression of opinions or grievances or exercise of any democratic rights”. It said: “The power under Section 144 CrPC, being remedial as well as preventive, is exercisable not only where there exists a present danger, but also when there is an apprehension of danger.” However, it said 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.
Referring to the turbulence that has inflicted Kashmir over the years, Justice N.V. Ramana, pronouncing the judgment, said the choice of providing a meaningful answer to the question — of whether we need more liberty or security — was challenging.
“The pendulum of preference should not swing in either extreme direction,” said mJustice Ramanna, and “citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time”.
The order “suspending Internet services indefinitely is impermissible”, which could only be for a “temporary duration”, a bench comprising Justices N.V. Ramana, B. Subhash Reddy and B.R. Gavai said in their ruling on Friday. They added: “Repetitive orders under Section 144 CrPC would be an abuse of power.”
The court said that a magistrate, exercising powers under Section 144 CrPC, was “duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure”.
Any order passed under Section 144, the ruling said, “should state the material facts to enable judicial review of the same”, and should be exercised in “a bona fide and reasonable manner” by relying on the “material facts, indicative of application of mind”. This will enable judicial scrutiny of the order passed under Section 144, it added.
Having held that prolonged suspension of Internet services was impermissible, the court gave a constitutional protection to the use of the Internet for the exercise of the right to free speech and expression and carry out any trade or profession. “We declare that the freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the Internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)”, said Justice Ramana, speaking for the bench.
It said that any order suspending Internet services was “subject to judicial review based on the parameters” set by the court in Friday’s judgment.
The court said this while deciding a batch of petitions including one by Kashmir Times managing editor Anuradha Bhasin and senior Congress leader Ghulam Nabi Azad challenging the lockdown and communications blackout in Kashmir since August 5, 2019, in the wake of the abrogation of Article 370 of the Constitution and bifurcating the state into two Union territories.
The court directed the J&K government to publish all orders in force and any future orders under Section 144 CrPC and for suspension of telecom services, including the Internet, to enable the affected persons to challenge it before the high court or the appropriate forum.