Article 19 of the Constitution, Section 144 of the Code of
Criminal Procedure, Telegraph Act, Section 5 as well as the suspension rules
appended to this act.
Amerada Bhasin and Ors. vs. Union of India and Ors
10 January 2020
Bench Judges: NV Ramana (Author), R Subhash Reddy, B.R Gavai
Major Issues Involved:
- Whether the Government can claim exemption from producing all the orders
passed Under Section 144, Code of Criminal Procedure and other orders under
the Suspension Rules?
- Whether the freedom of speech and expression and freedom to practise any
profession, or to carry on any occupation, trade or business over the Internet
is a part of the fundamental rights under Part III of the Constitution?
- Whether the imposition of restrictions Under Section 144, Code of
Criminal Procedure were valid?
- Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 2019 was
violated due to the restrictions?
- Whether the Government's action of prohibiting internet access is valid?
- The Respondent State/competent authorities are directed to publish all
orders in force and any future orders Under Section 144, Code of Criminal
Procedure and for suspension of telecom services, including internet, to
enable the affected persons to challenge it before the High Court or
- The Court declared that the freedom of speech and expression and the
freedom to practice any profession or carry on any trade, business or
occupation over the medium of internet enjoys constitutional protection
Under Article 19(1)(a) and Article 19(1)(g). The restriction upon such
fundamental rights should be in consonance with the mandate Under Article
19(2) and (6) of the Constitution, inclusive of the test of proportionality.
- An order suspending internet services indefinitely is impermissible
under the Temporary Suspension of Telecom Services (Public Emergency or PublicService)
Rules, 2017. Suspension can be utilized for temporary duration only.
- Any order suspending the internet issued under the Suspension Rules,
must adhere to the principle of proportionality and must not extend beyond
- Any order suspending the internet under the Suspension Rules is subject
to judicial review based on the parameters set out herein
- 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
- The Court directed the Respondent State/competent authorities to review
all orders suspending internet services forthwith.
- 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.
- The power Under Section 144, Code of Criminal Procedure, being remedial
as well as preventive, is exercisable not only where there exists present
danger, but also when there is an apprehension of danger. However, the
danger contemplated should be in the nature of an emergency and for the
purpose of preventing obstruction and annoyance or injury to any person
- The power Under Section 144, Code of Criminal Procedure cannot be used
to suppress legitimate expression of opinion or grievance or exercise of any
- An order passed Under Section 144, Code of Criminal Procedure 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.
- While exercising the power Under Section 144, Code of Criminal
Procedure, the Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and thereafter,
apply the least intrusive measure.
- Repetitive orders Under Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure in accordance with law laid down
- Ram Jeth Malani vs. Union of India (4 July 2011):
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 information necessary for them to properly articulate the case and be heard,
especially where such information is in the possession of the State.
- Madhya Bharat vs. Union of India (25 Jan.1954):
There can be complete prohibition if the situation demands. Hence, reasonable
restriction as mentioned under Art.19(2) would mean complete prohibition as
- State of Gujarat vs. Mirzapur Moti Kureshi Kasab Jamat (26
The study of aforesaid case law points to three propositions which emerge with
respect to Article 19(2) of the Constitution.
- Restriction on free speech and expression may include cases of
- 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.
- Whether a restriction amounts to a complete prohibition is a question of
fact, which is required to be determined by the Court with regard to the
facts and circumstances of each case.
- Justice K.S Puttuswamy vs. Union of India (26 Sept.2018):
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 purpose of the law.
- CPIO vs. Subhash Chandra Aggarwal (13 Nov.2019):
It is also crucial for the standard of proportionality to be 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.
- Chintaman Rao vs. State of Madhya Pradesh (8 Nov.1950):
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 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.
- Md. Faruq vs.State of Madhya Pradesh (1 April 1969):
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 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.
- Om Kumar vs. Union of India (17 Nov.2000):
By proportionality, we mean the question whether, 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 may be.
- Modern Dental College & Research Centre vs. State of M.P (2 May 2016) :-
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 accepts the
modern constitutional theory that the constitutional rights are related.
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 inherent tension between democracy's two
In this direction, the next question that arises is as to what 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 a limitation is constitutional if it
is 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..
- A measure restricting a right must have a legitimate goal (legitimate
- It must be a suitable means of furthering this goal (suitability or
rational connection stage).
- There must not be any less restrictive but equally effective alternative
- The measure must not have a disproportionate impact on the right-holder
- Hukam Chand Shyam Lal vs. Union of India (17 Dec.1975):-
(Interpretation of Section 5 of Telegraph Act) 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 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
Further, the existence of the emergency which is a prerequisite for
the exercise of power under this section, 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 followed by the phrase or in the interests of the public safety.
- Babulal Parate vs State Of Maharashtra (12 Jan.1961)
(Section 144 of CrPC):
- Section 144, Code of Criminal Procedure does not confer arbitrary power
on the Magistrate, since it must be preceded by an inquiry.
- Although Section 144, Code of Criminal Procedure 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, Code of Criminal Procedure is not an unlimited power.
- 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, Code of Criminal Procedure order. While
considering such reasons, due weight must be given to the opinion of the
District Magistrate who is responsible for the maintenance of public peace
in the district.
- 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.
- Even if certain Sections of people residing in the particular 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),
Code of Criminal Procedure seeking exemption or modification of the order to
permit them to carry out any lawful activity.
- 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.
- The order of the Magistrate Under Section 144, Code of Criminal
Procedure 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.
- If any prosecution is launched for non-compliance of an order issue
Under Section 144, Code of Criminal Procedure, the validity of such an order
Under Section 144, Code of Criminal Procedure can be challenged even at that
- Madhu Limaye v. State of Maharashtra (13 Oct.1977):
- 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
- exercised in a judicial manner which can withstand judicial scrutiny.
- Gulam Abbas vs. State of Uttar Pradesh (3 Nov.1981):
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.
Preservation of the public peace and tranquility 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 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.....
other words, the Magistrate's action should be directed against the wrong doer
rather than the wronged. Furthermore, it 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 restrictions which would affect only a minor Section of
the community rather than prevent a larger Section more vociferous and militant.
It is only in an extremely extraordinary situation, when other measures are
bound to fail, that a total prohibition or suspension of their rights may be
resorted to as a last measure
Written By: Shashwata Sahu, Advocate
, LLM, KIIT School of
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