SC directs J&K admin to review all orders on restrictions
Supreme CourtIANS

SC directs J&K admin to review all orders on restrictions

New Delhi, January 10, 2020

The Supreme Court on Friday directed the Jammu and Kashmir administration to review all orders connected with restrictions in the region, as it also declared that "access to internet" enjoys constitutional protection under the fundamental rights.

A bench headed by Justice N. V. Ramana and comprising Justices R. Subhash Reddy and Justice B. R. Gavai, which reserved the judgement on November 27 last year, said: "We direct the state/competent authorities to review all orders suspending internet services forthwith. The competent authorities are directed to publish all orders in force and any future orders under Section 144, CrPC (Criminal Procedure Code) and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum."

The Supreme Court issued 15 directions in its judgement, which mainly focussed addressing issues impeding access to internet. It also stressed that the power under Section 144 of the CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

The verdict came on a clutch of petitions including the petition by senior Congress leader and former Chief Minister Ghulam Nabi Azad challenging the Centre's decision to impose restrictions, which also included restrictions on access to the internet and Section 144 prohibiting the assembly of four or more people, on the erstwhile state of Jammu and Kashmir, after the revocation of provisions of Article 370 on August 5, which gave special status to the state.

On the aspect of access to the internet, the apex court said that it declares the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). "The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality," it said.

The court emphasised suspension of internet can be only temporary. "An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilised for temporary duration only," it said. And, also the order suspending internet is bound to face the judicial review.

The court took a strong view on the undefined periodicity of the suspension rules,

"The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6)," it said.

On the imposition of Section 144, the top court said that the power under the provision cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. "An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order", said the court.

The apex court also observed that the orders not in accordance with the law laid in its verdict, must be revoked, and, in the future, if there is a necessity to pass fresh orders, the law laid down must be followed.

Besides Azad, the court had heard the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times, and a few interveners, who challenged the imposition of restrictions on the valley.

"Repetitive orders under Section 144, CrPC would be an abuse of power. The respondent state/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, CrPC in accordance with law laid down above", said the court.


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