Anuradha Bhasin v. Union of India

After the security advisory and the events of 4 and 5 August 2019, phone, internet and landline services were shut down in Jammu and Kashmir. Movement and assembly were restricted under Section 144 of the Code of Criminal Procedure. The editor of the Kashmir Times and a Member of Parliament came to the Supreme Court under Article 32. The Court set out how such restrictions must be tested, published and reviewed.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Anuradha Bhasin — petitioner in W.P. (C) No. 1031 of 2019; Executive Editor of the Kashmir Times. She says she could not publish the Srinagar edition from 6 August 2019.

Ghulam Nabi Azad — petitioner in W.P. (C) No. 1164 of 2019. He says he was stopped from travelling to his constituency and could not talk to its people.

Union of India and others — respondents in W.P. (C) No. 1031 of 2019. They defended the restrictions on grounds of security. Mr. K. K. Venugopal, Attorney General, and Mr. Tushar Mehta, Solicitor General, argued for the Government.

Union of India and another — respondents in W.P. (C) No. 1164 of 2019.

Intervenors (persons who join a case to be heard) — Intervenors in I.A. No. 139141, I.A. No. 139555 and I.A. No. 140276 of 2019 in W.P. (C) No. 1031 of 2019 supported the petitioners. Some other intervenors supported the Government (para 9).

Petitioner in W.P. (Crl.) No. 225 of 2019 — this petition was withdrawn during arguments. His senior counsel still made submissions.

Procedural History

This case began in the Supreme Court itself under Article 32. There is no lower-court decision in this case. The judgment records these steps.

1. The two petitions were filed under Article 32. W.P. (C) No. 1031 of 2019 was filed on 10 August 2019 (paras 5, 141). W.P. (C) No. 1164 of 2019 was filed by Mr. Ghulam Nabi Azad (paras 5-6).
2. On 16 August 2019, W.P. (C) No. 1031 of 2019 was tagged with W.P. (C) No. 1013 of 2019 (five-Judge Bench). It was later de-tagged (para 8).
3. On 16 September 2019, a Co-ordinate Bench issued notice in W.P. (C) No. 1164 of 2019. It let Mr. Azad visit Srinagar, Anantnag, Baramulla and Jammu, subject to any restrictions. He undertook not to hold any political rally or activity. The State and the Union were to respond on prayers (2) and (3) within two weeks (para 7).
4. On 16 September 2019, a Co-ordinate Bench also passed an order in W.P. (C) No. 1031 of 2019. The State was to make all endeavours to restore normal life. Health care, schools and public transport were to function. All forms of communication were to be normalised, if required on a selective basis, particularly for health care facilities. This was subject to overriding considerations of national security (para 8).
5. On 1 October 2019, this Bench said no further intervention applications would be entertained. It allowed additional documents to be filed in support of intervention applications (para 8).
6. On 16 October 2019, the Solicitor General said some restrictions had been relaxed and asked for a week to file an additional affidavit. The petitioners said they had not been given the orders. The Solicitor General claimed privilege over the orders but said they could be produced. The Bench asked him to file an affidavit giving the reasons if he did not want to give copies (para 8).
7. On 24 October 2019, the orders were placed on record and pleadings were complete. The matter was listed for final disposal on 5 November 2019 (para 8).
8. The Bench heard counsel and all intervenors on 5, 6, 7, 14, 19, 21, 26 and 27 November 2019 (para 8).
9. The State first claimed privilege over the orders. It then dropped that claim and produced only sample orders (paras 12, 18).
10. On 26 November 2019, the Solicitor General asked to produce certain confidential documents for the Court alone. He objected to showing them to the petitioners (para 135).
11. The restrictions were allegedly removed on 27 September 2019 (para 138).
12. The judgment was delivered on 10 January 2020 at New Delhi. The writ (a court's formal order) petitions and all pending applications were disposed of (para 153).

Facts

1. The Civil Secretariat, Home Department, Government of Jammu and Kashmir issued a security advisory. It told tourists and Amarnath Yatris to cut short their stay and return, in the interest of safety and security. Educational institutions and offices were then ordered shut until further orders (para 3).
2. On 4 August 2019, mobile phone networks, internet services and landline connectivity were all discontinued in the valley. Movement was restricted in some areas (para 3).
3. On 5 August 2019, the President issued Constitutional Order 272. It applied all provisions of the Constitution to the State of Jammu and Kashmir. It also modified Article 367 (Interpretation) for the State (para 4).
4. On the same day, the District Magistrates feared a breach of peace and tranquillity. They restricted movement and public gatherings under Section 144 Cr.P.C. (the power of a Magistrate to issue urgent orders in cases of nuisance or apprehended danger) (para 4).
5. Ms. Bhasin says journalists' movement was severely restricted. The Srinagar edition of the Kashmir Times could not be distributed on 5 August 2019. She has been unable to publish it since 6 August 2019 (para 4).
6. Her petition says the Kashmir Times was founded in 1954 as a news weekly and became a daily in 1962. It has two daily editions, one from Jammu and one from Srinagar (para 141).
7. Her petition says the Kashmir Times is widely read in Jammu and Kashmir and has significant readership in Punjab, Delhi and Himachal Pradesh. It says newspaper publication needs news gathering by reporters travelling across the Valley and free interaction with the public and officials (para 141).
8. Her petition says the services were discontinued in the Kashmir valley and in some districts of Jammu and Ladakh. It says that from the morning of 5 August 2019, with a heavy military presence, barricades and severed communication links, the State was under a de facto curfew. It adds that Constitutional Order 272 was published in the Gazette that day and, under Article 370(1), added Article 367(4) to the Constitution (para 141).
9. Her petition says formal orders for the shutdown were not communicated to the affected population. It says the shutdown crippled news gathering, reporting, publication and circulation, and froze web portals and news websites (para 141).
10. Her petition says that on 5 August 2019 the Jammu and Kashmir Reorganisation Bill, 2019 was introduced in the Rajya Sabha and passed. The Lok Sabha passed it on 6 August 2019, and the President assented on 9 August 2019. The Reorganisation Act was to take effect on 31 October 2019, creating a new Union Territory of Jammu and Kashmir (para 141).
11. She says the Srinagar edition was not published from 6 August 2019 to 11 October 2019. After 11 October 2019 only a truncated copy was published. Internet and SMS services were shut even after 115 days, and the news portal was frozen (para 141).
12. Mr. Azad says he was stopped from travelling to his constituency. He says the restrictions stopped him communicating with his constituents (para 6).
13. Both petitioners asked for orders setting aside all orders shutting down or suspending communication services. They asked for restoration of mobile, internet and landline services throughout Jammu and Kashmir. Ms. Bhasin also asked for steps to ensure safe movement of journalists and for guidelines protecting the media's means to report (para 5).
14. The petitioners and intervenors said the orders were not available to them. The State did not deny that. It produced only sample orders (paras 11-12).
15. The State gave figures from 1990 to 2019: 71,038 recorded incidents of terrorist violence, 14,038 civilians dead, 5292 security personnel killed and 22,536 terrorists killed (para 35).
16. Eight orders on communication and internet restrictions were placed before the Court. Four were passed by the Inspector General of Police of the respective zone. Four were confirmation orders by the Principal Secretary, Home Department, confirming those four (para 101).
17. The State said restrictions were being relaxed and reviewed (para 102). The restrictions were allegedly removed on 27 September 2019 (para 138).
18. The petitioners said that, on the ground, police were still restricting movement during the day (para 139).
19. Ms. Bhasin has now resumed publication (para 151).

Issues Raised

1. 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? (para 10)
2. Is the freedom of speech and expression over the internet part of the fundamental rights under Part III of the Constitution? Is the same true of the freedom to practise any profession or carry on any occupation, trade or business over the internet? (para 10)
3. Whether the Government's action of prohibiting internet access is valid? (para 10)
4. Whether the restrictions imposed under Section 144 Cr.P.C. were valid? (para 10)
5. Whether the freedom of the press of the petitioner in W.P. (C) No. 1031 of 2019 was violated by the restrictions? (para 10)

Arguments Contended

The arguments are recorded under Part B of the judgment, by counsel. Only the intervenors' summary carries a paragraph number (para 9). The last point under Ms. Grover comes from the Court's discussion (para 95).

For the petitioners and intervenors

Ms. Vrinda Grover (petitioner in W.P. (C) No. 1031 of 2019):

• The petitioner, an executive editor of a major newspaper, could not function after 5 August 2019 because of restrictions on the press.
• Print media came to a halt because the internet, which is essential for the modern press, was not available.
• Curtailing the internet restricts free speech. It must be tested for reasonableness and proportionality.
• The procedure for restricting internet services is in the Temporary Suspension of Telecom Services Rules, 2017 (the Suspension Rules), made under the Telegraph Act. They show the restriction was meant to be temporary.
• The orders placed on record were ex facie perverse and showed non-application of mind. They did not follow the Suspension Rules and gave no reasons for necessity.
• The orders rested on an apprehension of a law and order situation. Public order (disturbance that affects the community at large) is not the same as law and order, and the situation did not warrant the orders.
• The proviso to Section 5(2) of the Telegraph Act treats press messages differently. So an order interfering with the press complies with that Section only if it says the press is to be restricted (para 95).

Mr. Kapil Sibal (petitioner in W.P. (C) No. 1164 of 2019):

• The orders had to be produced before the Court and cannot be the subject of privilege.
• The State produced documents and status reports during argument. This was improper because the petitioners had no proper chance to rebut them.
• The Union can declare an Emergency only in limited situations. No internal disturbance or external aggression was shown, yet the restrictions were akin to an Emergency.
• A Section 144 Cr.P.C. order deals with a law and order situation. These orders showed no existing law and order issue or apprehension of one.
• A Section 144 order cannot be passed against the public generally. It must be directed at the people or group apprehended to disturb the peace. The State must identify them, and an entire State cannot be brought to a halt. There was no application of mind.
• Even if some material existed for the Section 144 orders, the question is how the State balances individual rights.
• The State did not show why landline services had to be blocked.
• Internet restrictions under the Telegraph Act must follow Section 5 of that Act, in line with Article 19. There can be no blanket orders, because that would be a complete ban. Social media and the general internet should be treated differently.
• The least restrictive option must be used, and the State should have taken preventive or protective measures. The State must balance the safety of the people with the lawful exercise of their fundamental rights.
• Internet restrictions affect free speech and the right to trade. A less restrictive measure, such as blocking only social media sites like Facebook and WhatsApp, was possible. This was done in India for human trafficking and child pornography sites, in Bihar, and in Jammu and Kashmir in 2017.
• The State must keep transport, schools and business going while restricting.

Mr. Huzefa Ahmadi (intervenor in I.A. No. 139141 of 2019):

• Restrictions on free speech must be reasonable under Article 19(2) and tested on proportionality.
• Section 144 Cr.P.C. orders must rest on objective material and not on conjecture.

Mr. Dushyant Dave (intervenor in I.A. No. 139555 in W.P. (C) No. 1031 of 2019):

• Courts in many jurisdictions have balanced national security and terrorism against citizens' rights. He relied on Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999). The Israeli Supreme Court held torture during interrogation of an alleged terrorist unconstitutional.
• Accepting the State's justification would give the State too much power to impose broad restrictions in varied situations. Individual liberty would be subsumed by social control.
• Article 32 is placed in Part III to allow enforcement of the other fundamental rights. He referred to the Constituent Assembly debates.
• He placed the National Telecom Policy, 2012 before the Court. He said the wide restrictions contravene it.
• Free speech lets people discuss the burning topic of the day, including the abrogation of Article 370.
• The restrictions were meant to be temporary but had lasted more than 100 days.

Ms. Meenakshi Arora (intervenor in I.A. No. 140276 in W.P. (C) No. 1031 of 2019):

• Under Articles 19 and 21, State action needs five features. There must be backing of a law, a legitimate purpose, a rational connection between act and object, and necessity. When those four are shown, the test of proportionality applies.
• The validity of the orders must be tested on the facts on the date of the orders, 4 August 2019.
• Unpublished orders cannot have the force of law. Publication is part of natural justice, and orders must be accessible to the public. The State cannot refuse to produce orders or claim privilege.
• Whatever the expediency, the State must show necessity. People have the right to speak, whether good, bad or ugly.
• Proportionality was upheld in K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Courts must look at legal and physical restrictions and also at the fear they create in the populace.

Mr. Sanjay Hegde (petitioner in W.P. (Crl.) No. 225 of 2019, withdrawn during arguments):

• He and his family are law-abiding but suffer the effects of the restrictions.
• Citing Liversidge v. Anderson, (1941) 3 All ER 338, he said Lord Atkin's dissent upholding citizens' rights is now the law of the land.

For the respondents (Union of India, the State and supporting intervenors)

Mr. K. K. Venugopal, Attorney General:

• He supported the Solicitor General's submissions. The background of terrorism in the State must be taken into account.
• Relying on National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, he said this Court had earlier taken cognizance of terrorism in the State.
• Given cross-border terrorism and internal militancy, it would have been foolish not to take preventive measures. The need for Section 144 orders is clear from the background. Similar steps were taken in 2016 when a terrorist was killed.

Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir:

• The State's first duty is to ensure security and protect lives, limbs and property. The petitioners' and intervenors' facts were incorrect.
• The State's history must be considered. It has suffered both physical and digital cross-border terrorism.
• Abrogation of Article 370 on 5 August 2019 was a historic step. It conferred rights, and 106 people-friendly laws have become applicable.
• Public movement was not restricted, and individual movement was never restricted. Schools have reopened. Restrictions were put in place by area and are being relaxed. Restrictions were never imposed in Ladakh, which shows application of mind. There was no general clampdown.
• Magistrates were best placed to know the ground situation. There is now nearly hundred percent relaxation. Restrictions were relaxed on the basis of threat perception.
• Figures show people were leading ordinary lives. All newspapers, television and radio channels are functioning, including from Srinagar. The Government took steps to make essential facilities available.
• Section 144 orders can be preventive. A Magistrate can pass them even on personal knowledge, as a speedy mechanism. They must be judged against the history of the State.
• Relying on Babulal Parate v. State of Bombay, AIR 1960 SC 51, and Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) 3 SCC 746, he said the orders were justified to maintain the security of the State. It was impossible to separate troublemakers from ordinary citizens.
• The Magistrate had enough facts to pass the orders. There was speculation on the ground about abrogating Article 370. Provocative speeches and messages were being transmitted, and this was in the public domain.
• The Court does not sit in appeal over restrictions under Section 144. Its jurisdiction is limited, especially when no mala fide is alleged and national security is involved. The level of restriction is best left to officers on the ground.
• Internet was never restricted in the Jammu and Ladakh regions.
• Social media can be used to incite violence. The limited use of internet was to stop targeted messages from outside the country from aggravating the situation. The internet allows false news and fake images to spread violence. The dark web lets people buy weapons and illegal substances.
• Free speech law on newspapers cannot be applied to the internet. Newspapers give one-way communication, while the internet gives two-way communication and easy spread of messages.
• He pointed to photographs, tweets and messages of political leaders of Kashmir, which he called misleading, abrasive and detrimental to the integrity and sovereignty of India.
• Banning only certain websites while allowing other parts is not possible. It was tried in 2017 and was not successful.
• The orders under the Suspension Rules were passed in compliance with the procedure and are being reviewed strictly under it.

Some intervenors: they supported the Attorney General and Solicitor General. They said the restrictions were necessary and lawful. They said normalcy is returning and the petitions are not maintainable (para 9).

Court's Reasoning

The judgment is a single opinion by Justice N.V. Ramana for the Bench. It is signed by N.V. Ramana, R. Subhash Reddy and B.R. Gavai, JJ. Paragraphs are numbered 1 to 153. Steps below follow the judgment's own order and headings.

Justice N.V. Ramana (opinion of the Bench)

Introduction (Part A).

1. Noted: The valley's history is marked by violence and militancy. The two sides show factually irreconcilable pictures. The Court will not go into the political propriety of the decision. That is left to democratic forces. Its limited scope is to balance liberty and security so that the right to life is secured and enjoyed in the best possible manner (para 1).
2. Noted: Liberty and security have always been at loggerheads. The pendulum should not swing to either extreme. The Court is here only to ensure citizens get all rights and liberty to the highest extent in a given situation, while security is also ensured (para 2).
3. Noted: Paragraphs 3 to 9 record the genesis of the dispute, the two petitions, the interim orders and the parties' contentions. They are set out in Facts, Procedural History and Arguments above (paras 3-9).
4. Noted: The Court framed five questions of law (para 10).

Production of orders (Part D; Issue I).

5. Noted: The Court was asked to decide the validity of orders restricting movement and communication, but the orders were not before it. The petitioners and intervenors said they did not have them (para 11).
6. Noted: The State did not deny that the orders were unavailable. It still did not produce them. On the 16 October 2019 order it placed only sample orders, citing the difficulty of producing numerous orders withdrawn and modified daily. It also said the plea to produce orders expanded the scope of the petitions (para 12).
7. Held: The prayers in the writ petitions are enough to reject the State's contention. 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, ask for orders directing production of all orders restricting movement since 4 August 2019. They also ask for all orders blocking communication (para 13).
8. Noted: In Ram Jethmalani v. Union of India, (2011) 8 SCC 1, the Court said the Article 32(1) right must be meaningful. Petitioners must not be denied information needed to argue their case, especially when the State holds it (para 14).
9. Held: There are two reasons for ordering production. First, Article 19 has been read to include the right to information as a facet of free speech. A democracy sworn to transparency and accountability requires production of orders, as it is the right of an individual to know. The State must also act responsibly and must not take away fundamental rights in an implied, casual or cavalier manner (para 15).
10. Held: Second, democracy needs free flow of information. The Constitution expects, and natural law requires, that no law be passed in a secret manner. The Court cited Lon L. Fuller: "there can be no greater legal monstrosity than a secret statute". It also cited Bentham on open justice and James Madison on popular government and information (para 16).
11. Held: A challenge may concern the curtailment of fundamental rights by an order or action that is not easily available. Then the State should be proactive and place all relevant orders before the Court. The exception is a specific ground of privilege or countervailing public interest. The State must claim it specifically on affidavit. The Court then decides whether the claim overrides the petitioner's interest. Portions can be redacted, or material claimed as privileged, if the State justifies it on grounds allowed by law (para 17).
12. Held: Here the State first claimed privilege, then dropped the claim and produced sample orders citing difficulty. That is not a valid ground to refuse production of the orders (para 18).

Fundamental rights and restrictions (Part E; Issues II and III). Nature of the rights.

12. Noted: The petitioners say the restrictions affected freedom of movement, freedom of speech and expression, and the right to free trade and avocation. The Court first examines the nature of fundamental rights (para 19).
13. Noted: Fundamental rights in Part III are a negative list, so that no person can be denied a right until the Constitution itself prescribes limits. The only exception is Article 21A, a positive right. It needs active effort by the government to provide education to all children up to the age of 16 years (para 20).
14. Noted: The framers knew India's social and economic conditions and the costs of a proactive duty. They chose to apply fundamental rights in a negative manner. The Court must respect the constitutional morality behind this (para 21).

Freedom of expression over the internet.

15. Noted: The internet is today the most used and accessible medium for exchange of information. It has remedied the limits of storage space and accessibility of the print medium (para 22).
16. Noted: Vinton G. Cerf argued that the internet is important but cannot be elevated to a human right. In his view technology is an enabler of rights, not a right itself. The Court said that, with great respect, the prevalence and extent of the internet in one's life cannot be undermined (para 23).
17. Held: Law should imbibe technological development and mould its rules to society's needs. Non-recognition of technology in law is a disservice to the inevitable. The importance of the internet cannot be underestimated (para 24).
18. Held: The internet as a tool must be distinguished from freedom of expression through the internet. Free speech includes the right to disseminate information to as wide a section of the population as possible. Wider circulation or greater impact cannot restrict the content of the right or justify its denial. The Court referred to Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161, and Shreya Singhal v. Union of India, (2015) 5 SCC 1 (para 25).
19. Noted: The Court traced protection of the medium of expression. Indian Express v. Union of India, (1985) 1 SCC 641, held the print medium is covered by free speech. Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, held that the right to exhibit films on Doordarshan, subject to its terms, is part of Article 19(1)(a). Cricket Association of Bengal extended this to airwaves (para 26).
20. Held: Expression through the internet is one of the major means of information diffusion. Freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a). Any restriction must be in accordance with Article 19(2) (para 26).
21. Held: The internet is a very important tool for trade and commerce. Some trades depend completely on it. Freedom of trade and commerce through the internet is constitutionally protected under Article 19(1)(g), subject to the restrictions in Article 19(6) (para 27).
22. Noted: No counsel argued for declaring a right to access the internet as a fundamental right, so the Court expresses no view on it. It confines itself to declaring that speech and expression under Article 19(1)(a), and trade or business under Article 19(1)(g), using the medium of the internet, is constitutionally protected (para 28).

Restrictions under Article 19(2).

22. Noted: Article 19(2) allows the State to make laws imposing reasonable restrictions on the right in Article 19(1)(a). The listed interests are (para 29):
    • the sovereignty and integrity of India;
    • the security of the State;
    • friendly relations with foreign States;
    • public order;
    • decency or morality;
    • contempt of court, defamation and incitement to an offence.
23. Noted: Article 19(2) has three ingredients. The action must be sanctioned by law. It must be a reasonable restriction. It must further one of the listed interests (para 30).
24. Noted: The restriction is qualified by the word reasonable and limited to the listed situations. Reasonability is used in a qualitative, quantitative and relative sense (para 31).
25. Held: The petitioners' argument that restriction under Article 19 cannot mean complete prohibition cannot be sustained. Many judgments hold that restriction includes complete prohibition in appropriate cases. Those cases are Madhya Bharat Cotton Association 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, Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 and Dharam Dutt v. Union of India, (2004) 1 SCC 712 (para 32).
26. Held: Three propositions emerge on Article 19(2). Restriction on free speech may include prohibition. Even a complete prohibition must not excessively burden free speech. The government must justify it and explain why lesser alternatives would be inadequate. Whether a restriction amounts to complete prohibition is a question of fact for the Court in each case. The Court referred to State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 (para 33).
27. Noted: The second prong asks whether the restriction is least intrusive. That brings in balancing and proportionality. These are not new to the Constitution. 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, used a balancing approach for fundamental rights and directive principles (para 34).

Terrorism, the internet and comparative material.

28. Noted: Jammu and Kashmir has been a hot bed of terrorist insurgencies for many years. The State gave figures for 1990 to 2019: 71,038 incidents of terrorist violence, 14,038 civilians dead, 5292 security personnel killed and 22,536 terrorists killed (para 35).
29. Held: The geopolitical struggle cannot be played down or ignored. Even the broadest free speech guarantee does not protect the entire gamut of speech. The question is whether there is a clear and present danger in restricting the expression (para 35).
30. Noted: Modern terrorism relies heavily on the internet. It costs little and is not easily traced. It is used to raise money, recruit and spread propaganda, and it reaches young minds easily. The Court quoted Gregory S. McNeal on websites as information warfare (para 36).
31. Noted: Susan W. Brenner also says the traditional approach has not worked on terrorism because of the internet. The respondents said national security issues existed over and above a law and order situation. They cited infiltration and cross-border support for violence. The Solicitor General said the war on terrorism requires such restrictions to nip terrorism in the bud (para 37).
32. Held: War on terror is not limited to territorial fights. Yet the fight against terror cannot be equated to a law and order situation either. Confusion between treating terrorism as war in the strict sense and as a normal law and order problem has plagued the Government's submissions. The Court must consider them carefully (para 37).
33. Noted: The Court then surveyed the law of the United States, where the First Amendment protects speech (para 38).
34. Noted: In the Civil War, Clement L. Vallandigham called the war wicked and unnecessary. He was tried by a military commission and jailed. President Lincoln changed the sentence to banishment, calling it more humane and a less disagreeable means of securing least restrictive measures. The case is Vallandigham, 28 F. Cas. 874 (1863) (para 39).
35. Noted: In the First World War, the Espionage Act, 1917 penalised causing insubordination, disloyalty or mutiny. In Abraham v. United States, 250 U.S. 616 (1919), Justice Holmes dissented. He said speech producing a clear and imminent danger of substantive evils may be punished, and the power is greater in war than in peace (para 40).
36. Noted: In the Second World War, William Dudley Pelley was convicted under the Espionage Act, 1917. The US Supreme Court refused to review the conviction (para 41).
37. Noted: In the Cold War, Congress enacted the Communist Control Act in 1954. Dennis v. United States, 341 US 494 (1951), upheld limits on speech advocating overthrow of the Government. Sections 2(a)(1), 2(a)(3) and 3 of the Alien Registration Act, 1940 were involved. The US Supreme Court said the right to speech is not unlimited and may be subordinated to other values (para 42).
38. Noted: In the Vietnam war era, Brandenburg v. Ohio, 395 US 444 (1969), overruled Dennis. The State cannot punish advocacy of unlawful conduct unless it is intended to incite and likely to incite imminent lawless action (para 43).
39. Noted: After September 2001, Attorney General John Ashcroft said critics of anti-terror policy only aid terrorists. Bruce Ackerman wrote that the war on terrorism is not a compelling legal concept. He said borrowing war doctrines leads to sweeping incursions on liberties (para 44).
40. Noted: US law on dissent during war has changed a lot. Speech that incites imminent violence does not enjoy constitutional protection (para 45).
41. Held: The Government may restrict free speech under Article 19(1)(a) if the need arises, in compliance with Article 19(2). An abrasive statement with an imminent threat may be restricted if it impinges on the sovereignty and integrity of India. The question is one of extent rather than the existence of the power (para 46).

The doctrine of proportionality.

41. Noted: Balancing brings in the principle of proportionality (a restriction must fit the aim it serves, using the least intrusive means). K. S. Puttaswamy (Privacy-9J.), (2017) 10 SCC 1, called proportionality an essential facet of the guarantee against arbitrary State action (para 47).
42. Noted: CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459, said proportionality ensures neither right is restricted more than necessary to fulfil the legitimate interest of the other (para 48).
43. Noted: Balancing national security with liberty needs caution. Lucia Zedner warns that balancing is a politically dangerous metaphor unless what is at stake is spelt out (para 49).
44. Noted: Lord Diplock's aphorism sums up proportionality: "you must not use a steam hammer to crack a nut, if a nutcracker would do?" Proportionality is about means and ends. The Court cited R v. Goldsmith, [1983] 1 WLR 151 (para 50).
45. Held: Ronald Dworkin treats rights as rules that apply all-or-nothing and trump public good. This American approach may not completely suit India because Part III has inbuilt restrictions (para 51).
46. Noted: Robert Alexy views rights as principles to be realised to the greatest extent possible. Where principles conflict, one is weighed against the other. He says this implies proportionality (para 52).
47. Held: Proportionality is not foreign to the Constitution, given the word reasonable in Article 19. Reasonable restrictions ensure the enjoyment of rights is not arbitrary or excessive (para 53).
48. Noted: The Court cited these decisions in support (para 53):
    • Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118: a reasonable restriction is not arbitrary or excessive.
    • State of Madras v. V.G. Row, AIR 1952 SC 196: reasonableness is tested case by case, on the right, the purpose, the urgency, any disproportion and the prevailing conditions.
    • Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853: the Court must weigh impact on rights against the public interest and consider a less drastic restraint.
    • Om Kumar v. Union of India, (2001) 2 SCC 386: proportionality asks whether the least-restrictive choice was made. Whether the choice infringes rights excessively is for the Court.
    • Also see State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337, and Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39.
49. Noted: Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, held that no constitutional right is absolute. Limiting some rights in the public interest may be justified (para 54).
50. Noted: Modern Dental College said the tension between rights and their limits is resolved by proper balancing. The competing principles must coexist harmoniously (para 55).
51. Noted: Kai Möller calls proportionality the doctrinal tool for resolving such conflicts. The German test has four stages: legitimate goal, suitable means (rational connection), necessity (no equally effective but less restrictive alternative), and balancing (no disproportionate impact on the right-holder). Most issues are pushed to the balancing stage. Under this approach any legitimate goal is accepted. A lesser restrictive measure may be less effective, and even a marginal contribution to the goal satisfies the rational connection test (para 56).
52. Noted: The Canadian Oakes test in R. v. Oakes, (1986) 1 SCR 103, differs. The objective must be compelling enough to override a freedom. There must be a rational nexus. The means must impair the right as little as possible. The effects must be proportionate to the objective (para 57).
53. Noted: The Oakes test demands a compelling goal, not just a legitimate one. It also requires the least infringing measure, without the German requirement that the alternative be equally effective (para 58).
54. Noted: Modern Dental College relied on Aharon Barak. A limitation is permissible if it has a proper purpose and is rationally connected to it. It must also be necessary, because no alternative achieves the purpose with a lesser limitation. It must strike a proper balance (para 59).
55. Noted: Modern Dental College held that proportionality is inherently embedded in Article 19 through the doctrine of reasonable restrictions. It cited P.P. Enterprises v. Union of India, (1982) 2 SCC 33, and Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 (para 60).
56. Noted: Modern Dental College also propounded a comprehensive doctrine of proportionality in line with the German approach. A limiting law is proportional if it has a proper purpose, rationally connected measures and necessity, with a final balancing of interests (para 61).
57. Noted: Alexy urges a strong reading of the necessity stage. David Bilchitz found problems with it (para 62).
58. Noted: Bilchitz says the German test treats all policies as necessary. He says the Oakes test places a strong burden on the Government. A strict reading of necessity would fail well-intended policies if any slightly less drastic measure exists. So Alexy's conclusion may be too quick (para 63).
59. Noted: A strict reading also raises the doctrine of separation of powers (the division of functions between legislature, executive and courts). Courts would often substitute their views for the legislature's on the least restrictive measure. Bilchitz proposes a moderate necessity test with a four-step inquiry (para 64):
    • identify all feasible alternatives;
    • keep only alternatives that realise the objective in a real and substantial manner;
    • compare the impact of the measure and the alternatives on fundamental rights;
    • make an overall comparison and judge whether the measure is the best of all feasible alternatives.
60. Noted: Fundamental rights are not absolute but need strong protection. A sensible necessity test prevents a right from becoming absolute or being diminished. Bilchitz calls the test normative and qualitative, not factual or mechanical (para 65).
61. Noted: In K.S. Puttaswamy (Aadhaar 5J.), (2019) 1 SCC 1, Sikri, J. used the four stages from Modern Dental College and tempered them with Bilchitz. The result is an amalgam of the German and Canadian approaches (para 66).
62. Noted: In the same case, Chandrachud, J. restated the Puttaswamy tests for a privacy violation: legality, need (a legitimate State aim) and proportionality. Kaul, J. suggested a four-part test: sanction by law, necessity in a democratic society for a legitimate aim, proportionate interference, and procedural guarantees against abuse (para 67).
63. Noted: Chandrachud, J. also listed the fundamental precepts of proportionality. The aim must be legitimate. There must be a rational connection. The measures must be necessary and not infringe rights more than needed. They must protect legitimate purposes. The State must provide safeguards for stored data (para 68).
64. Noted: This is the present state of the doctrine in India. Proportionality is the key tool of judicial balance. Many scholars do not agree that proportionality is the same as balancing (para 69).
65. Held: The authorities must follow these requirements before an order restricts fundamental rights (para 70):
    • The goal of the measure must first be determined and must be legitimate.
    • Before settling on the measure, the authorities must assess any alternative mechanism to reach the goal.
    • The appropriateness of the measure depends on its effect on fundamental rights and its necessity.
    • Only the least restrictive measure can be used, on the facts.
    • Because the order seriously affects fundamental rights, it must rest on sufficient material and be open to judicial review (the power of courts to examine and strike down unconstitutional action).
66. Held: The degree of restriction, and its scope in territory and time, must stand in relation to what is actually necessary to combat an emergent situation (para 71).
67. Held: The decision maker must prioritise the factors at stake. A decision that curtails fundamental rights without appropriate justification is disproportionate. The restriction must be tailored to territorial extent, stage of emergency, nature of urgency, duration and nature of the restriction. This triangulation needs appropriateness, necessity and the least restrictive measure (para 72).
68. Noted: The petitioners relied on Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820, where the Hong Kong High Court used proportionality to strike down an anti-mask law. The Court need not comment on it, because it has independently propounded the Indian test. The facts there differ greatly (para 73).

Application to the internet.

72. Noted: The Court returned to restrictions on free speech over the internet (para 74).
73. Held: The State opposed selective access to internet services because of lack of technology. If that were accepted, the Government would have a free pass to block the internet completely each time. Complete blocking or prohibition perpetually cannot be accepted (para 75).
74. Held: There is ample merit in the Government's contention that the internet can propagate terrorism and challenge the sovereignty and integrity of India. Peace in the erstwhile State needs a multifaceted approach that does not excessively burden free speech. The Government must consider options under Article 19(2) that burden free speech in a minimalist manner (para 76).
75. Noted: The Court then turned to applying these principles to the present case (para 77).

Internet shutdown: procedure (Part F; Issue III).

76. Noted: Having covered the substantive law, the Court turned to the procedural aspect (para 78).
77. Held: Procedural justice cannot be sacrificed on the altar of substantive justice. Restrictions that affect fundamental rights need procedural justice, as recognised in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, and K. S. Puttaswamy (Privacy-9J.) (para 79).
78. Noted: The procedure for restricting the internet is twofold. One part is contractual, in the contracts between Internet Service Providers and the Government. The other is statutory, under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act. The Court is concerned only with the statutory scheme, mainly the Telegraph Act (para 80).
79. Held: Section 69A of the Information Technology Act, 2000 and the 2009 Blocking Rules allow blocking access to information. Shreya Singhal upheld them. The section blocks access to particular websites, not the internet as a whole. The Government cannot use it to restrict the internet generally (para 81).
80. Noted: Before 2017, internet restrictions were passed under Section 144 Cr.P.C. In Gaurav Sureshbhai Vyas v. State of Gujarat, Writ Petition (PIL) No. 191 of 2015, the Gujarat High Court upheld a Section 144 order blocking mobile internet. It did so by order dated 15 September 2015, without a full discussion of the Magistrate's power. SLP (C) No. 601 of 2016 against that order was dismissed in limine on 11 February 2016 (para 82).
81. Noted: Since 2017 the position has changed. The Suspension Rules were made under Section 7 of the Telegraph Act. States now use them to restrict telecom services, including internet (para 83).
82. Noted: The Suspension Rules have safeguards because action under them greatly affects fundamental rights. The Court is not concerned with their constitutional validity, which was not argued. It limits itself to their procedure. Rule 2 was reproduced in full (para 84).
83. Held: Under Rule 2(1), the competent authority is normally the Union Home Secretary or the State Home Secretary. In unavoidable circumstances, a duly authorised officer not below Joint Secretary rank may pass the order. The two provisos require confirmation by the competent authority within 24 hours. Without it, the order ceases to exist by operation of law (para 85).
84. Held: Rule 2(2) requires every order to be a reasoned order. This applies also to an order passed by an authorised officer and sent for confirmation. The reasoning must show the necessity of the measure and what the unavoidable circumstance was. Why: the rule integrates the proportionality analysis into the Rules (para 86).
85. Held: The competent authority's confirmation must not be a mere formality. It must show independent application of mind to the authorised officer's order, including any changed circumstances. The power to suspend belongs to the competent authority, and the authorised officer acts only in exigent circumstances (para 87).
86. Noted: Rule 2(2) also requires the reasoned order to be sent to the Review Committee by the next working day. Rule 2(5) sets up separate Union and State Review Committees. Under Rule 2(6), the Committee must meet within five working days. It records whether the order accords with Section 5(2) of the Telegraph Act (para 88).
87. Noted: Section 5(2) of the Telegraph Act lets the Government act on a public emergency (a serious situation threatening public safety, security or order). It may also act in the interest of public safety. The Government must be satisfied that action is necessary or expedient for a listed interest. Those interests are the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, and preventing incitement to an offence. Reasons must be recorded in writing. The order may bar or intercept messages. A proviso protects press messages of accredited correspondents unless their transmission is specifically prohibited (para 89).
88. Noted: In Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128, a four-Judge Bench read Section 5. A public emergency is the sine qua non (an essential condition) for using the power. The Government must record its satisfaction that one exists. The phrase is not defined, but its contours can be seen from the section (para 90).
89. Noted: People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, followed Hukam Chand for phone-tapping under Section 5(2). The first step is a public emergency or a public safety interest. The authority then records its satisfaction on one of the five listed interests (para 91).
90. Held: The pre-requisite for an order under Section 5(2), and so under the Suspension Rules, is a public emergency or the interest of public safety. The meaning of public emergency is inferred from its pairing with public safety. Hukam Chand ties it to the listed situations (para 92).
91. Held: An everyday emergency is different from one involving serious and widespread risk of harm to people or property. Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights speak of a public emergency threatening the life of the nation. A public emergency must be serious. It is decided case by case (para 93).
92. Held: The second requirement of Section 5(2) is satisfaction that the order is necessary or expedient for a listed interest. Reasons must be recorded. An emergency passes through stages. The authorities must have regard to the stage. Balancing differs by stage, so they must triangulate the necessity after satisfying proportionality (para 94).
93. Noted: Ms. Grover argued that, because of the proviso to Section 5(2), an order interfering with the press complies only if it specifically says the press is restricted. She could not support this with any judgment of the Court (para 95).
94. Held: The Suspension Rules do not provide for publishing orders. Still, a settled principle of natural justice is that an order affecting lives, liberty and property must be made available. Any law demanding compliance must be notified directly and reliably, whether or not the parent statute says so. The Court reads in a requirement that all orders under the Suspension Rules be made freely available through a suitable mechanism. It followed B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 (para 96).
95. Held: This requirement helps an affected party challenge the orders. Judicial review is always available even without an appellate mechanism, and cannot be taken away or made ineffective. An aggrieved person may challenge orders before the High Court under Article 226 or another appropriate forum (para 97).
96. Held: The procedural safeguards explained must be mandatorily followed. Hukam Chand said that where a power must be exercised in a certain way, it must be exercised in that way or not at all. This applies with more force given the large public impact on free speech (para 98).
97. Held: Complete broad suspension of telecom services, whether internet or otherwise, is a drastic measure. The State may consider it only if it is necessary and unavoidable. The State must first assess whether a less intrusive alternative exists. The Suspension Rules have gaps for the legislature to consider (para 99).
98. Held: The Rules are titled temporary, yet they give no maximum duration for a suspension order. Under the proportionality requirements, an order suspending services indefinitely is impermissible. Until the legislature cures this, the Review Committee under Rule 2(5) must review periodically within seven working days of the previous review. It must ask whether the order still meets Section 5(2) and is still proportionate. The suspension must not extend beyond the necessary period (para 100).
99. Noted: Eight orders on communication and internet restrictions were placed before the Court. Four were passed by the Inspector General of Police of the respective zone. Four were confirmation orders by the Principal Secretary to the Government of Jammu and Kashmir, Home Department (para 101).
100. Held: The Solicitor General said the authorities were considering relaxation, some restrictions were removed and review was constant. His submission that danger to public safety may remain cannot be ignored, as the Court was not fully told the ground situation. The authorities must pass fresh orders based on these guidelines. The State should have tried to determine whether blocking only social media was feasible. Why: not all orders were placed before the Court, it was unclear which were in force, and public order fears remained. So the relief was moulded (para 102).

Restrictions under Section 144 Cr.P.C. (Part G; Issue IV).

106. Noted: The petitioners said no disturbing facts on 4 August 2019 warranted Section 144 restrictions. They said orders cannot rest on mere apprehension (para 103).
107. Noted: The Solicitor General said the volatile history, public material on external aggression and secessionist activity, and provocative statements by political leaders compelled the orders (para 104).
108. Noted: Section 144 Cr.P.C. was reproduced. It empowers a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate to act in urgent cases of nuisance or apprehended danger. The order must be written and state the material facts. It is served under Section 134. It may be directed to an individual, to residents of a place, or to the public generally when visiting a place. It may be passed ex parte (without notice to the person affected) in an emergency. It lasts no more than two months. The State Government may extend it by up to six months to prevent danger to life, health or safety, or a riot. Sub-sections (5) to (7) allow rescinding or altering it after hearing the applicant (para 105).
109. Noted: Section 144 is one of the mechanisms to maintain public peace. It sits in the Chapter on maintenance of public order and tranquillity. It can be invoked only in urgent cases of nuisance or apprehended danger (para 106).
110. Noted: The section lets the State take preventive measures against imminent threats to public peace. It allows mandatory or prohibitory orders. It has safeguards: prior inquiry, setting out material facts, and modifying or rescinding the order when the situation warrants (para 107).
111. Noted: The Court set out five safeguards for close scrutiny (para 108):
     • Prior inquiry: the Magistrate must form an opinion, after careful inquiry, that there is sufficient ground and that immediate prevention or speedy remedy is desirable.
     • Content: the order cannot be a blanket order. It must set out the material facts, which show the reasons that weighed with the Magistrate.
     • Communication: the order is served as Section 134 provides. If that is not practicable, it is notified by proclamation and publication. It may be passed ex parte only in an emergency or where notice cannot be served.
     • Duration: the limits are two months for the Magistrate and six months more for the State Government. Both must ensure the restrictions are for a limited duration.
     • Rescission or modification: the Magistrate or State must act judicially on any application, give a personal hearing and give reasons for rejection. Applications must be disposed of quickly.
112. Noted: Section 144 has been before Constitution Benches. In Babulal Parate v. State of Bombay, the Court upheld it against a challenge based on the right of assembly, because of its safeguards (para 109). It held (para 109):
     • the power is not arbitrary because it needs a prior inquiry, and it is not unlimited;
     • it can be used only in an emergency, to prevent obstruction, annoyance or injury to a person lawfully employed;
     • the Magistrate must state the material facts, and due weight is given to the District Magistrate's opinion;
     • it can be used when danger is apprehended, not just when it is likely or tends to occur;
     • an order can cover a whole area where the guilty cannot be separated from the public, but an affected person can seek exemption or modification;
     • on an application for modification, the Magistrate must hold a judicial proceeding, give a hearing and give reasons;
     • the order can be challenged in the High Court, whose revisionary powers can quash an order not supported by its materials;
     • the order's validity can be challenged even in a prosecution for breaching it.
113. Noted: A five-Judge Bench in State of Bihar v. Kamla Kant Misra held the latter part of Section 144(6) of the 1898 Code unconstitutional. It let the State extend an order indefinitely, with no limit on duration and no way to make a representation. The 1973 Code prescribes a maximum duration (para 110).
114. Noted: A seven-Judge Bench in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746, reconsidered Babulal Parate and affirmed the validity of Section 144. The power must be used in urgent situations to prevent harm, and in a judicial manner that withstands scrutiny. The emergency must be sudden and the consequences sufficiently grave (para 111).
115. Noted: Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC 226, held that Section 144 can interfere with lawful conduct only where excited feelings make it impracticable to allow it. The Magistrate must decide what is reasonably necessary. If public peace is not in danger, the Magistrate cannot act under Section 144 (para 112).
116. Noted: Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71, held that a Section 144 order is an executive order open to challenge under Article 226. Its basis is urgency. The action should be directed against the wrong-doer, not the wronged. A total prohibition or suspension of rights may be resorted to only as a last measure, in an extremely extraordinary situation when other measures are bound to fail (para 113).
117. Noted: Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, (1983) 4 SCC 522, doubted the nature-of-order point in Gulam Abbas. It held that repetitive Section 144 orders would be an abuse of power. Other provisions, such as Sections 107 and 145, should be used in such cases (para 114).
118. Noted: Ramlila Maidan Incident, In re, (2012) 5 SCC 1, stressed the safeguards under Section 144 and when an order can issue (para 115).
119. Held: The petitioners argued that no emergency existed and that orders based on apprehension cannot stand. The Court did not accept this. Section 144 is a preventive power. Babulal Parate said it can be used when there is apprehension of danger and not only present danger (paras 116-117).
120. Held: Mr. Sibal feared that a State could use such blanket orders to stop opposition parties from contesting elections. Section 144 cannot be used to prevent legitimate expression of opinion or grievance or the exercise of democratic rights. Divergent views and disapproval are protected. They cannot found a Section 144 order unless material shows likely incitement to violence or a threat to public safety. It applies only in an emergency, to prevent obstruction, annoyance or injury to a person lawfully employed. The safeguards, including judicial review, allay the fear (para 118).
121. Noted: The petitioners argued that law and order is narrower than public order. They said it would justify only narrower Section 144 restrictions (para 119).
122. Noted: A five-Judge Bench in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, drew three concentric circles. Law and order is the largest, public order is inside it, and the security of the State is the smallest. An act may affect law and order but not public order (para 120).
123. Noted: A mere disturbance of law and order may not breach public order. Madhu Limaye added that the emergency must be sudden and the consequences grave. Annoyance must reach sufficiently grave proportions to fall within public order (para 121).
124. Noted: Ramlila Maidan said the line between public order and law and order is fine but clear. A restriction for law and order is the least intruding. Public order may qualify for a greater degree of restriction. Section 144 and Section 144A reflect this distinction (para 122).
125. Held: Law and order, public order and security of the State are distinct legal standards. The Magistrate must tailor restrictions to the nature of the situation. Two families quarrelling over irrigation water breach law and order. Two communities fighting over it may create a public order situation. The same remedy cannot suit both. The Magistrate cannot apply a straitjacket formula. The restrictions must be proportionate to the situation (para 123).
126. Held: Mr. Sibal argued that a Section 144 order cannot be issued against the public generally. The Court cited Madhu Limaye, which said the order can be against a particular individual or the public in general. A general order may be needed when the numbers are so large that distinction is risky. If it is too general, it can be questioned by the remedies in law (para 124).
127. Held: The restrictions must be proportionate to the threat. Ramlila Maidan places an onerous duty on the Magistrate to assess the perceived threat and impose the least invasive restriction. The restriction must not be excessive in nature or time. The perceived threat must be real and not imaginary or a mere likely possibility (para 125).
128. Held: Modern Dental College and K.S. Puttaswamy (Aadhaar 5J.), which brought proportionality into the fold, apply equally to an order under Section 144 (para 126).
129. Noted: The petitioners said Section 144 orders cannot be privileged and must record material facts. The Solicitor General said the officers on the ground knew best. He said periodic orders showed application of mind, the Court cannot sit in appeal, and no mala fide (bad faith) was alleged (para 127).
130. Held: To settle the issue, the Court relied on Ramlila Maidan. A Section 144 order restricts free speech and the right to assemble peaceably. It should be in writing, based on material facts, and give reasons. In State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684, the Court said it does not act like an appellate authority. It interferes only where the order is patently illegal, without jurisdiction or for ulterior motive. Interference should be the exception (para 128).
131. Held: Section 144 orders directly affect the public's fundamental rights. Used in a casual and cavalier manner, the power causes severe illegality. Judicial review is crippled if the order is unreasoned or un-notified. Babulal Parate also stressed that the order must be in writing and show it rests on material facts (para 129).
132. Held: The material facts must be shown. The power should normally be confined to a particular area or issue. Here, the petitioners said most of the erstwhile State was under Section 144 orders. The respondent's case, though not clearly stated, was national security and cross-border terrorism. The Court cautioned against excessive use of the proportionality doctrine in matters of national security, sovereignty and integrity (para 130).
133. Noted: The respondents said the Court cannot sit in appeal over executive orders on law and order. Praveen Bhai Thogadia said courts should not normally interfere in law and order. Authorities are best placed to assess it. Prohibitory orders may be passed without hearing where quick action is needed. Courts should interpose only on concrete abuse or extraneous considerations (para 131).
134. Held: The Court does not sit in appeal, but judicial review undeniably exists. The Magistrate and the State are best placed to judge the threat to public peace and law and order. The law requires them to state the material facts, which allows judicial scrutiny (para 132).
135. Held: Curtailing fundamental rights must rest on objective facts and not arbitrary power. Section 144 measures must fit the exigency, territorial extent, nature of restriction and duration. In urgency the authority needs enough material to base its opinion. The threshold is higher for a larger area or a longer duration (para 133).
136. Held: A Section 144 order should show application of mind, based on the material facts and the remedy directed. Reasoning links the officer's mind to the controversy and conclusion. "Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law." (para 134).
137. Noted: On 26 November 2019 the Solicitor General asked to produce confidential documents for the Court alone. He objected to showing certain documents to the petitioners. Mr. Sibal said the Court could assume such intelligence inputs exist. The Court did not go into the adequacy of the material and presumed it exists (para 135).
138. Held: One test of reasonableness is whether the aggrieved person can make a representation against the restriction. No party can be deprived of liberty without a fair hearing. If the order is silent on material facts, the person cannot effectively challenge it and there is no effective judicial review. The State must make such orders public so that the right under Section 144(5) becomes real. The Court cited Kamla Kant Misra (para 136).
139. Noted: No mala fide was alleged. The petitioners did not deny the State's power to pass restrictive orders. The respondents relied on history, cross-border terrorism, infiltration and the anticipated threat to law and order. Yet the orders do not explain these aspects (para 137).
140. Held: The restrictions were allegedly removed on 27 September 2019, so the exercise is virtually academic. The Court still cannot ignore the State's non-compliance with law. As Mr. Sibal said, the case concerns the future too. The authorities must follow the principles laid down and uphold the rule of law (the principle that everyone, including the State, is under the law) (para 138).
141. Held: The petitioners said police were still restricting movement in the day, though the respondents said only some areas had night restrictions. If so, that is not proper. A government that fears a law and order threat must follow the procedure in law, respect citizens' rights and pass need-based orders. Directions are in the operative part (para 139).
142. Held: The Court summarised the position on Section 144 in five points (para 140):
     • The power is remedial and preventive. It applies to present danger and to apprehended danger. The danger must be in the nature of an emergency, to prevent obstruction and annoyance or injury to a person lawfully employed.
     • It cannot suppress legitimate expression of opinion or grievance or exercise of democratic rights.
     • The order must state the material facts to enable judicial review. It must be passed in good faith and reasonably, relying on material facts that show application of mind.
     • The Magistrate must balance rights and restrictions on proportionality and apply the least intrusive measure.
     • Repetitive Section 144 orders are an abuse of power.

Freedom of the press (Part H; Issue V).

147. Noted: The petition was filed on 10 August 2019 under Article 32 by the Executive Editor of the Kashmir Times, which publishes two editions daily. Its factual averments are summarised in Facts above (para 141).
148. Noted: The importance of the press is well established. A free press is needed for a democracy to function. The first case was Channing Arnold v. The Emperor, (1914) 16 Bom LR 544. The Privy Council said the journalist's freedom is part of the subject's freedom and is no higher (para 142).
149. Noted: In the Constituent Assembly, B. N. Rau said a separate press freedom was hardly needed because free expression covers it (para 143).
150. Held: Bennett Coleman v. Union of India, (1972) 2 SCC 788, Indian Express and Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842, stress the importance of press freedom. It must be considered here (para 144).
151. Noted: The petitioner in W.P. (C) No. 1031 of 2019 does not challenge any specific order restricting the press or its content. She says the cumulative effect of Section 144 and the internet and communication restrictions indirectly affected press freedom (para 145).
152. Held: Freedom of the press is a valuable and sacred right under Article 19(1)(a). A modern democracy cannot do without it. But her contention rests on the chilling effects (people holding back from exercising a protected right for fear of State action) alleged (para 146).
153. Noted: Chilling effect is a fairly recent concept in Indian law. In the US it traces to Weiman v. Updgraff, 344 U.S. 183. It has been used from an emotive argument to a substantive part of free speech law. It is mainly used to attack State action that may be constitutional but greatly burdens free speech. If not tempered judicially, it would be a self-proclaiming instrument (para 147).
154. Noted: It was first used to show that a person could be deterred from exercising a right by an ambiguous, overbroad statute, in the First Amendment context. Frederick Schauer analysed it. Daniel J. Solove replicated the analysis for privacy and internet use. K.S. Puttaswamy (Privacy-9J.) accepted these panopticon concerns (para 148).
155. Held: Rights must be viewed cumulatively, not in silos. The technical rule of causal link cannot apply to human rights. The direct impact test in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, was widened to direct and inevitable consequence in Rustom Cavasjee Cooper v. Union of India, 1970 (1) SCC 248. A detailed analysis is not needed here, so the Court leaves open the standard of causal link in a challenge based on chilling effect (para 149).
156. Noted: Widening the doctrine has met judicial scepticism. In Laird v. Tantum, 408 U.S. 1 (1972), the US Supreme Court dismissed a claim because a subjective chill is no substitute for specific objective harm. It also cited Clapper v Amnesty Int'l, USA, 568 U.S. 113 (2013) (para 150).
157. Held: To say the restrictions were unconstitutional because of a general chilling effect on the press is speculative without evidence. No such evidence was placed on record (para 150).
158. Held: One test is comparative harm. Here, no evidence showed that similarly placed people were restricted from publishing between 6 August 2019 and 11 October 2019. The Solicitor General said other newspapers were running. Ms. Bhasin has resumed publication. The Court does not go further, except to say that responsible governments must respect press freedom at all times. Journalists must be accommodated. There is no justification for "a sword of Damocles to hang over the press indefinitely" (para 151).

Conclusion (Part I). The Court issued directions (see Judgement) and disposed of the petitions (paras 152-153).

Authorities

• Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999) — relied on by Mr. Dave; the Israeli court held torture in interrogation unconstitutional (Part B).
• K. S. Puttaswamy v. Union of India (Privacy-9J.), (2017) 10 SCC 1 — proportionality as a facet of protection against arbitrary State action; procedural justice; chilling-effect concerns accepted (paras 47, 79, 148).
• K.S. Puttaswamy (Aadhaar 5J.), (2019) 1 SCC 1 — proportionality stages tempered by Bilchitz; Chandrachud, J.'s and Kaul, J.'s tests; applied to Section 144 (paras 66-68, 126).
• Liversidge v. Anderson, (1941) 3 All ER 338 — Lord Atkin's dissent cited by Mr. Hegde (Part B).
• National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1 — cited by the Attorney General on terrorism in the State (Part B).
• Babulal Parate v. State of Bombay, AIR 1960 SC 51 — upheld Section 144 with safeguards. Apprehension of danger suffices. The order must be written with material facts (Part B; paras 109, 116, 118, 129).
• Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746 — seven-Judge Bench; urgency and grave consequences; general orders allowed (Part B; paras 111, 121, 124).
• Ram Jethmalani v. Union of India, (2011) 8 SCC 1 — petitioners must get information the State holds (para 14).
• Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161 — free speech covers airwaves and wide dissemination (paras 25-26).
• Shreya Singhal v. Union of India, (2015) 5 SCC 1 — free speech includes wide dissemination; Section 69A upheld (paras 25, 81).
• Indian Express v. Union of India, (1985) 1 SCC 641 — print medium protected (paras 26, 144).
• Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410 — right to exhibit films on Doordarshan is part of Article 19(1)(a) (para 26).
• Madhya Bharat Cotton Association 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; Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87; Dharam Dutt v. Union of India, (2004) 1 SCC 712 — restriction can include complete prohibition (para 32).
• State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 — whether a restriction is a complete prohibition is a question of fact (para 33).
• Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591; Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147 — balancing of fundamental rights and directive principles (para 34).
• Ex parte Vallandigham, 28 F. Cas. 874 (1863); Abraham v. United States, 250 U.S. 616 (1919); Dennis v. United States, 341 US 494 (1951); Brandenburg v. Ohio, 395 US 444 (1969) — US law on speech in wartime; Brandenburg overruled Dennis (paras 39, 40, 42, 43).
• CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459 — meaning of proportionality (para 48).
• R v. Goldsmith, [1983] 1 WLR 151 — Lord Diplock's steam hammer aphorism (para 50).
• Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118; State of Madras v. V.G. Row, AIR 1952 SC 196; Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853; Om Kumar v. Union of India, (2001) 2 SCC 386; State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337; Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39 — reasonableness and proportionality (para 53). Kamla Kant Misra is also cited on the limit on duration and the right to make a representation (paras 110, 136).
• Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 — no absolute rights; four-stage proportionality embedded in Article 19 (paras 54-55, 59-61, 66, 126).
• R. v. Oakes, (1986) 1 SCR 103 (Canada) — the Oakes test (para 57).
• P.P. Enterprises v. Union of India, (1982) 2 SCC 33; Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 — cited inside the Modern Dental College extract on reasonable restriction (para 60).
• Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820 — Hong Kong anti-mask law; the Court did not comment (para 73).
• Maneka Gandhi v. Union of India, (1978) 1 SCC 248 — procedural justice (para 79).
• Gaurav Sureshbhai Vyas v. State of Gujarat, Writ Petition (PIL) No. 191 of 2015 (Gujarat High Court, 15 September 2015); SLP (C) No. 601 of 2016 — Section 144 order blocking mobile internet upheld; SLP dismissed in limine on 11 February 2016 (para 82).
• Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 — meaning of public emergency; power must be used in the prescribed way or not at all (paras 90, 92, 98).
• People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301 — steps under Section 5(2) (para 91).
• B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 — orders affecting people must be made available (para 96).
• Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC 226; Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCC 71; Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, (1983) 4 SCC 522 — limits on Section 144 orders (paras 112-114).
• Ramlila Maidan Incident, In re, (2012) 5 SCC 1 — safeguards, proportionality, public order versus law and order, written orders (paras 115, 122, 125, 128).
• Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 — three concentric circles (paras 120-121).
• State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684 — courts do not sit in appeal over Section 144 orders (paras 128, 131).
• Channing Arnold v. The Emperor, (1914) 16 Bom LR 544 (Privy Council) — the journalist's freedom (para 142).
• Bennett Coleman v. Union of India, (1972) 2 SCC 788; Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842 — importance of press freedom (para 144).
• Weiman v. Updgraff, 344 U.S. 183 — origin of chilling effect in the US (para 147).
• A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Rustom Cavasjee Cooper v. Union of India, 1970 (1) SCC 248 — direct impact and direct and inevitable consequence (para 149).
• Laird v. Tantum, 408 U.S. 1 (1972); Clapper v Amnesty Int'l, USA, 568 U.S. 113 (2013) — subjective chill is not enough (para 150).
• Lon L. Fuller, Jeremy Bentham and James Madison — on secret law, open justice and popular information (para 16).
• Vinton G. Cerf — internet as an enabler, not a human right (para 23).
• Gregory S. McNeal — websites as information warfare (para 36).
• Susan W. Brenner — law enforcement approach and online terrorism (para 37).
• John Ashcroft and Bruce Ackerman — the war on terrorism debate (para 44).
• Lucia Zedner — balancing as a dangerous metaphor (para 49).
• Ronald Dworkin — rights as trumps (para 51).
• Robert Alexy — rights as principles; strong necessity stage (paras 52, 62).
• Kai Möller — the German four-stage test (para 56).
• Aharon Barak — limitation of constitutional rights, relied on in Modern Dental College (para 59).
• David Bilchitz — moderate necessity test (paras 62-65).
• B. N. Rau — free expression includes press freedom (para 143).
• Frederick Schauer and Daniel J. Solove — chilling effect and panopticon concerns (para 148).
• Also cited in footnotes: Modern Dental College & Research Centre v. State of M.P. (as bracketed inside the extract in para 66); Kwok Wing Hang and Ors. v. Chief Executive in Council (para 73). The other footnotes give only articles and books by the writers listed above and by Julian Rivers, Martin Luteran and Alison L. Young.

Provisions mentioned

• Article 19(1)(a): freedom of speech and expression (paras 26, 28).
• Article 19(1)(g): the right to practise any profession or carry on any occupation, trade or business (paras 27-28).
• Article 19(2): allows reasonable restrictions on speech in the listed interests (paras 29-31).
• Article 19(6): allows reasonable restrictions on the freedom to practise a profession or carry on trade or business (para 27).
• Article 21: quoted in the Puttaswamy extract on legality, need and proportionality (para 67). Ms. Arora also relied on Articles 19 and 21 in argument (Part B).
• Article 21A: the positive right to education for children up to age 16 (para 20).
• Article 32: the right to move the Supreme Court to enforce fundamental rights (paras 5, 14).
• Article 226: the High Court's writ power, used to challenge orders (paras 97, 113).
• Articles 367 and 370: Constitutional Order 272 applied the Constitution to the State and modified Article 367. Article 370 was abrogated on 5 August 2019 (paras 4, 141; Part B).
• Section 144 Cr.P.C.: urgent orders in cases of nuisance or apprehended danger (paras 105-140). Section 134: service of the order (para 108). Section 144A: the District Magistrate's power to bar arms in processions (para 122). Sections 107 and 145: other remedies for disputes (para 114).
• Section 5(2) of the Telegraph Act, 1885: power to order that messages not be transmitted, in a public emergency or for public safety (paras 89-94). Section 7: the source of the Suspension Rules (para 83). Section 5(1): taking possession of licensed telegraphs (para 90).
• Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017: made under Section 7 of the Telegraph Act (paras 83-88).
  • Rule 2(1): the competent authority, unavoidable circumstances and confirmation within 24 hours.
  • Rule 2(2): reasons in the order, and forwarding to the Review Committee by the next working day.
  • Rule 2(3): conveying the direction in writing or by secure electronic communication.
  • Rule 2(4): nodal officers to handle requisitions.
  • Rule 2(5): Union and State Review Committees.
  • Rule 2(6): the Committee meets within five working days and records whether the order accords with Section 5(2).
• Section 69A of the Information Technology Act, 2000 with the 2009 Blocking Rules: blocking of access to particular information (para 81).
• Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights: public emergency threatening the life of the nation (para 93).
• Section 1 of the Canadian Charter (as quoted in Oakes): limits must be reasonable and demonstrably justified in a free and democratic society (para 57).
• Article 13(1)(a) draft (Constituent Assembly): B. N. Rau's remark that free expression includes press freedom (para 143).
• Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) and Jammu and Kashmir Reorganisation Act, 2019: as in the petition (paras 4, 141).
• US laws: Espionage Act, 1917 (para 40); Alien Registration Act, 1940, Sections 2(a)(1), 2(a)(3) and 3 (para 42); Communist Control Act, 1954 (para 42); First Amendment (paras 38, 148).
• National Telecom Policy, 2012: placed before the Court by Mr. Dave (Part B).

Judgement

The Bench issued these directions (para 152).

1. The State and competent authorities must publish all orders in force, and any future orders under Section 144 Cr.P.C. and for suspending telecom services including internet. This lets affected persons challenge them before the High Court or another forum.
2. The Court declares that freedom of speech and expression, and the freedom to practise any profession or carry on any trade, business or occupation over the internet, "enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)". Restrictions must be in line with Article 19(2) and (6), including the test of proportionality.
3. An order suspending internet services indefinitely is impermissible under the Suspension Rules. Suspension can be used for a temporary duration only.
4. Any order suspending internet under the Suspension Rules must follow proportionality and must not go beyond the necessary duration.
5. Any such order is subject to judicial review on the parameters set out in the judgment.
6. The Rules give no periodic review and no time limit. Until the gap is filled, the Review Committee under Rule 2(5) must review within seven working days of the previous review, as Rule 2(6) requires.
7. The State and competent authorities must review all orders suspending internet services immediately.
8. Orders not in accordance with this law must be revoked. Any fresh orders in future must follow the law laid down.
9. The authorities must consider immediately allowing government websites, localised or limited e-banking, hospital services and other essential services in regions where internet services will not be restored at once.
10. Section 144 Cr.P.C. is remedial and preventive. It works on present danger and apprehended danger. The danger must be an emergency, to prevent obstruction and annoyance or injury to a person lawfully employed.
11. Section 144 cannot be used to suppress legitimate expression of opinion or grievance or the exercise of democratic rights.
12. A Section 144 order must state the material facts to enable judicial review. It must be passed in good faith and reasonably, relying on material facts that show application of mind.
13. The Magistrate must balance rights and restrictions on proportionality and apply the least intrusive measure.
14. Repetitive Section 144 orders are an abuse of power.
15. The State and competent authorities must review immediately whether existing Section 144 orders need to continue, in accordance with this law.
16. The writ petitions are disposed of in these terms, and all pending applications are also disposed of (para 153).
17. The judgment records no order on costs.

Legal Principle / Ratio

Freedom of speech and expression, and trade or business, over the medium of the internet are protected by Article 19(1)(a) and Article 19(1)(g). The Court did not declare a fundamental right to access the internet itself. Any restriction, including a suspension of internet services, must satisfy Article 19(2) or 19(6) and the four-stage test of proportionality: a legitimate goal, rational connection, necessity and balancing. Orders must be published and reasoned, must be temporary, and are open to judicial review. Section 144 orders need material facts, and the least intrusive measure.

Four stages: legitimate goal, rational connection, necessity and balancing (paras 56, 66).

Key holding: "An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017."

Obiter and observations

• The Court expressed no view on whether access to the internet is itself a fundamental right, as no counsel argued for it (para 28).
• The Court did not decide the constitutional validity of the Suspension Rules, as it was not argued (para 84).
• It cautioned against excessive use of the proportionality doctrine in matters of national security, sovereignty and integrity (para 130).
• It left open the standard for proving a causal link in a challenge based on chilling effect (para 149).
• It did not examine the adequacy of the confidential material placed before it, but presumed it exists (para 135).
• It did not decide the point on the proviso to Section 5(2) of the Telegraph Act beyond noting that no judgment supported the petitioner's reading (para 95).

Critical Analysis

Analysis based on the judgment text.

• The Court held that the Suspension Rules give no maximum duration for a suspension. It filled the gap only with a seven-working-day review by the Review Committee, until the legislature acts (paras 99-100). It sets no outer time limit itself.
• The Court did not test the shutdown orders one by one. The orders were not all before it, and it was unclear which remained in force. It moulded the relief and sent the matter back to the authorities to pass fresh orders (para 102).
• The Court did not examine whether the confidential material justified the restrictions. It only presumed such material exists (para 135). It also said the exercise had become virtually academic because the restrictions were allegedly removed (para 138).
• The Court rejected the press-freedom claim for lack of evidence and left the causal-link standard open (paras 149-151). It did not decide whether the Government's failure to consider a social-media-only block was itself unlawful. It said only that the State should have tried (para 102).

Significance

• The Court extended Article 19(1)(a) and Article 19(1)(g) to the internet as a medium of speech and trade (paras 26-28).
• It gave proportionality a settled four-stage form in the Indian context and applied it to executive orders (paras 56, 66, 70-72).
• It read a publication requirement into the Suspension Rules and made judicial review of suspension orders available (paras 96-97).
• It required reasoned orders, confirmation by the competent authority, and a Review Committee that checks proportionality every seven working days (paras 86-88, 100).
• It summarised the law on Section 144 Cr.P.C. in five points and required written orders stating material facts (para 140).
• It said the case is about the future as well as the past, and cautioned the Government (para 138).

Exam-Important Points

• Rule: speech and trade over the internet are protected by Articles 19(1)(a) and 19(1)(g). Trap: no declaration that internet access is itself a fundamental right (para 28).
• Rule: a restriction under Article 19(2) needs a law, a reasonable restriction and one of the listed interests, and may include prohibition if justified (paras 30, 33). Trap: the test of proportionality still applies.
• Rule: the proportionality stages are legitimate goal, rational connection, necessity and balancing. Only the least restrictive measure may be used (paras 56, 66, 70).
• Rule: internet suspension orders must be reasoned, confirmed by the competent authority within 24 hours, reviewed by the Review Committee and published (paras 85-88, 96).
• Rule: indefinite suspension is impermissible. Review every seven working days (paras 100, 152).
• Rule: Section 69A of the IT Act blocks particular websites, not the internet as a whole (para 81).
• Rule: a public emergency for Section 5(2) of the Telegraph Act must be serious and is decided case by case (paras 92-93).
• Rule: Section 144 orders need material facts, must not be blanket or repetitive, and cannot suppress legitimate expression (para 140). Trap: apprehension of danger is enough, but only in the nature of an emergency (paras 116, 140).
• Rule: law and order, public order and security of the State are distinct standards (paras 120-123).
• Rule: orders restricting fundamental rights should be produced in court. Any privilege must be claimed specifically on affidavit (para 17).
• Trap: the press-freedom claim failed for lack of evidence of a chilling effect. The Court did not say press freedom was unaffected (paras 150-151).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.