[Video] Court has cautioned the State against arbitrary exercise of power, Vrinda Grover on Kashmir judgment

Speaking to Bar and Bench after the Supreme Court pronounced its judgment in the matter concerning the internet shutdown and other restrictions in Kashmir, Advocate Vrinda Grover, who represented the lead petitioner in the case, said that the ruling is an "advancement" as regards Article 19 freedoms.

On Friday, the Supreme Court delivered its judgment in a batch of petitions challenging the restrictions on internet and telecom services in Kashmir in the aftermath of the abrogation of Article 370.

While the Court did not pass any orders on lifting of these curbs, it held that internet freedom in relation to Freedom of Expression under Article 19(1)(a) enjoys constitutional protection. Observing that certain trades are completely dependent on the internet, the Court held that the freedom of trade and commerce through the internet is also constitutionally protected under Article 19(1)(g).

On the issue of Section 144 CrPC orders, the Court in no uncertain terms said that these orders can be passed only when there is a likelihood of violence or danger or if conditions of emergency are present. Continuous use of power by the State to pass orders under this Section is abuse of power, the Court observed.

This judgment was delivered by a Bench of Justices NV Ramana, R Subhash Reddy, and BR Gavai.

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Grover says that the Court's ruling on orders passed under Section 144 of the Code of Criminal Procedure (CrPC) cautions the State against "arbitrary exercise of power" where national security is often cited as a reason to curb freedoms of the people. The conditions for this action of the State have been specified in the judgment now, Grover says. This could have an impact across the country in the backdrop of ongoing nationwide protests against the Citizenship Amendment Act (CAA), she told Bar & Bench.

The Apex Court has mandated for the State to cite specific reasons, which ought to be of critical nature, and of "emergency" situation before clamping down on basic freedoms of the people, Grover says. After the Court's caution against State's "arbitrary" use of power, she urged the government to show respect for the Court's ruling.

Even as the five-month long internet restrictions in Kashmir continue, Grover says that the ruling on internet freedom in the context of Freedom of Expression, Freedom of Profession, and Freedom of Press, is an "advancement". This is significant, Grover opines, given that any such restrictions to be imposed in the future would have to be subject to the "scrutiny of Article 19(2)", which lays down the reasonable restrictions.

Grover points out that while there is no end in sight for the internet restrictions in Kashmir yet, the takeaway from Court's ruling that imposition of indefinite restrictions is impermissible may assume significance.

The tests of proportionality and reasonability are mandatory before imposition of any curbs and this is a step in the right direction, Grover suggests.

The Court's order for the State to publish all the orders imposing curbs, and for such orders to be reviewed was also commended by Grover. She points out that as per the Court's direction, the Review Committee will have to review the orders within a period of seven days.