Five months after restrictions were imposed on internet and telecom services in Jammu & Kashmir in the wake of the abrogation of Article 370, the Supreme Court today finally delivered its verdict on petitions challenging the same.While some would criticise the time it has taken for the Apex Court to review the imposition of the restrictions, today’s judgment makes some pertinent observations regarding the exercise of fundamental rights through the internet, prohibitory orders under Section 144 of the Code of Criminal Procedure, internet shutdowns, and more.At the outset, the judgment delivered by a Bench of Justices NV Ramana, R Subhash Reddy and BR Gavai states that the limited scope of its decision is to strike a balance between liberty and security concerns.“The question before us, simply put, is what do we need more, liberty or security?…The pendulum of preference should not swing in either extreme direction so that one preference compromises the other. It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”.[Breaking] Right to Freedom of Expression through the Internet is part of Article 19(1)(a): SC in petitions challenging restrictions in Kashmir.Production of OrdersThe Court held that the State should take a proactive approach in ensuring that all the relevant orders are placed before the Court. If there is a specific ground of privilege or countervailing public interest to be balanced, the same must be specifically claimed by the State on affidavit.Portions of prohibitory orders can be redacted or claimed as privileged, if the State justifies such redaction on the grounds, the Court held. However, in the present case, the Court noted,“…while the State initially claimed privilege, they subsequently dropped the claim and produced certain sample orders, citing the difficulty to produce all the orders before this Court. In our opinion, this is not a valid ground to refuse production of orders before the Court.".Fundamental Rights and RestrictionsShedding light on the interface between law and technology, the Court held that the importance of internet cannot be underestimated. It sought to draw a distinction between the internet itself and the right to freedom of expression through the internet. In this regard, it was held,“There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.”Noting the contemporary relevance of the internet, the Court held,.“Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.”Supreme Court.However, since none of the counsel argued for a declaration that the right to access the internet is a fundamental right, the Court did not express any opinion on the same.The Bench further noted that the internet is a very important tool for trade and commerce. 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), subject to the restrictions provided under Article 19(6).On the question of restrictions on this right, the Court held that the government may do so only in compliance with the requirements under Article 19(2).“The question is one of extent rather than the existence of the power to restrict.”In this background, it was held that the doctrine of proportionality must be employed.“The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review……It ought to be noted that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate.”.Internet/telecom services shutdownNotably, the Court observed that the 2017 Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, which empower the government to impose restrictions on telecom services, contains gaps that need to be addressed by the Legislature.Rule 2(2) requires that any order of suspension be confirmed by the competent authority within 24 hours. In today’s judgment, the Court held,“…confirmation as contemplated under Rule 2(2) must not be a mere formality, but must indicate independent application of mind by the competent authority.”Further, the reasoning of the authorised officer should not only indicate the necessity of the measure but also what the “unavoidable” circumstance was to impose the restrictions.Noting that an order under the Rules suspending internet and telecom services indefinitely is impermissible, the Court held,“…we think it necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, which must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.".Section 144On the passing of Section 144 orders, the Court held,“…the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger.”While passing such an order, the magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstance, the Court held.If orders under Section 144 are passed in a casual and cavalier manner, it would result in severe illegality, the Court held. Moreover,“In a situation of urgency, the authority is required to satisfy himself of such material to base his opinion on immediate imposition so as take immediate remedial measures. However, if the authority is to consider imposition of restrictions over a larger territorial area or a longer duration, the threshold requirement is relatively higher.”.Press FreedomWhile addressing one of the main contentions raised by Kashmir Times Editor Anuradha Bhasin (the lead petitioner), the Court reiterated that the freedom of press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution.In her petition, Bhasin had contended that she was not able to publish her newspaper from August 6 to October 11 last year. However, it was noted that no evidence was put forth to establish that others were also prevented from publishing newspapers in the area. The Court observed,“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period.”Considering the fact that Bhasin has now resumed publication, the Court did not deem it fit to indulge in the issue. However, it did urge the government to acknowledge press freedom..“…responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification in allowing a sword of Damocles to hang over the press indefinitely.”Supreme Court.Having made these observations, the Court went on to issue the following directions:The Respondent State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.We declare 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 Public Service) Rules, 2017. Suspension can be utilized for temporary duration only.Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.TheexistingSuspensionRulesneitherprovideforaperiodicreview nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).We direct 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.In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.The power under Section 144, Cr.P.C., 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 lawfully employed.The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.While exercising the power under Section 144, Cr.P.C., 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, Cr.P.C. 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, Cr.P.C in accordance with law laid down above.