Tag: justice r subhash reddy

When on Bench, Judge Cannot Defend Against Even ‘Motivated Attacks’: CJI Ramana

He made these remarks at a farewell event for Justice R. Subhash Reddy, who demitted office on Tuesday after serving for over three years in the apex court.

New Delhi: Chief Justice of India (CJI) N.V. Ramana on Tuesday said when on the bench, a judge cannot defend himself against even “motivated attacks”, while a retired judge can do so when the need arises.

He made these remarks at a farewell event for Justice R. Subhash Reddy, who demitted office on Tuesday after serving for over three years in the apex court.

At the farewell function organised virtually by the Supreme Court Bar Association (SCBA), Justice Ramana said retirement is just like “freedom regained”, particularly for a judge, as he is then free from all the restrictions that come with office and can express his views on all issues freely and frankly.

While the CJI did not give any instances of “motivated attacks”, he was the target of sensational accusations by Andhra Pradesh chief minister Y.S. Jagan Mohan Reddy. In October 2020, Reddy claimed that Ramana – who was then next in line to be CJI – was acting against his government to aid N. Chandrababu Naidu. An in-house inquiry subsequently dismissed Jagan’s allegations.

“When on the Bench, a judge cannot defend himself against even motivated attacks. A retired judge is free to defend himself, when the need arises. I am sure Brother Reddy will make the best use of [his] new found freedom,” the CJI said on Tuesday.

Earlier in the day, CJI Ramana sat with Justices Reddy, Surya Kant and Hima Kohli for the ceremonial hearing in the court at noon and was effusive in his praise of the outgoing judge, saying he upheld and protected people’s liberties and has compassion and consciousness about social realities.

Justice Reddy took up several death penalty cases, and would spend an immense amount of time on them to ensure that the person gets a fair chance at justice even at the last stage, he added.

“On the bench, I personally witnessed his analytical skills while deciding cases of Anuradha Bhasin, Foundation of Media Professionals, and Shah Faisal vs Union of India,” he said.

“Justice Reddy, during his tenure as a Supreme Court judge, dealt with several sensitive questions of law and penned down more than 100 judgments. I have also shared a bench with him and have benefited from his opinions and acumen,” CJI Ramana said.

“Justice Reddy is known for his compassion and consciousness about social realities , the CJI said, adding that the outgoing judge will be remembered for his dedicated commitment to the administrative side of the apex court.

The CJI recalled his association with Justice Reddy from his days as a lawyer and said he practised for 22 years at tribunals, civil courts, the Andhra Pradesh high court and also before the Supreme Court in civil, criminal, constitutional, revenue, taxation, labour, company and service matters on both original and appellate side.

It is not easy to bid farewell to a friend who is known to you for nearly four decades, he said.

Justice Reddy, who was elevated to the apex court on November 2, 2018, has the distinction of being the first judge from Telangana. With his retirement, the total strength of apex court judges has come down to 32 against the sanctioned strength of 34.

In his remarks, Justice Reddy raised the issue of pendency of cases and called for bringing drastic reforms keeping in mind the present-day needs of society. According to LiveLaw, Justice Reddy said that apart from modernising procedural laws for faster disposal of pending cases, having a further court of appeal above the high courts may solve the issue of high-pendency of cases to some extent.

Attorney general K.K. Venugopal, solicitor general Tushar Mehta and SCBA president Vikas Singh were among others who also spoke on the occasion.

(With PTI inputs)

Quota for Persons With Disabilities Extend to Promotions, Not Just Recruitment: SC

The apex court also said that the mode of recruitment is no ground for rejecting reservation benefits to persons with disabilities.

New Delhi: The Supreme Court on Monday, June 28, ruled that reservation will be applicable to persons with disability (PwD) even during promotions in employment, Bar and Bench has reported.

It also said that the mode of recruitment – whether or not if the employee concerned was recruited under the disability quota or not – is no ground to reject reservation benefits to a person as long as they are ‘disabled’ at the time of availing promotion. The court further noted that the absence of rules enunciating reservation benefits during promotions is no justification to deny rights granted under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

A division bench of Justices Sanjay Kishan Kaul and R. Subhash Reddy, therefore, dismissed an appeal filed by the Kerala government against a judgment of the Kerala high court which had directed one Leesamma Joseph (respondent) be given a promotion in the PwD quota though her initial appointment was not under PwD quota but on compassionate grounds.

“Source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion,” The Hindu quoted judges as saying.

Representational image. Photo: AbsolutVision/Unsplash, (CC BY-SA)

Leesamma Joseph, whose permanent disability was assessed at 55%, was employed in the Police department in 1996 as a typist/clerk on compassionate grounds after her brother’s death in harness. Upon subsequent promotions and seniority, she was appointed as a cashier on May 5, 2015. However, Joseph argued that she was entitled to promotion as a senior clerk with effect from July 1, 2002 with all
consequential benefits, and as a cashier with effect from May 20, 2012 with all attendant benefits and thereafter as junior superintendent with effect from the date of her entitlement.

She first moved the Kerala Administrative Tribunal for relief upon the “injustice” being meted out to her in promotions as granted under the 1995 Act, but the Tribunal dismissed her application on February 7, 2015. When the matter reached Kerala high court, she succeeded and the court acceded to her plea on March 9, 2020, against which the Kerala government moved the apex court.

Also read: Activists Slam Govt for Lack of Budgetary Allocations for Disabled Persons

Differing with the Kerala government’s view, the apex court ruled that the 1995 Act indeed allows for reservations of PwDs even in promotions. Relying on the judgment in the Union of India vs. National Federation of the Blind (2013), the judges opined that reservation has to be computed with reference to the total number of vacancies in the cadre strength and no distinction can be made between the posts to be filled by direct recruitment and by promotion. It further said that if the 1995 Act confines only to recruitment and not promotions, then it would negate the provisions of the legislative mandate.

The second issue the court was dealing with was whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

Hitting out at the Kerala government’s reluctance to grant reservation benefits to PwD candidates in promotions, the division bench said, “It shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was a classic example of the same.”

The court also said that the absence of rules under the 1995 Act cannot be a reason to deny reservation benefits to PwD and referred to judgments in Rajeev Kumar Gupta vs. Union of India and Siddaraju vs. State of Karnataka. 

It further added that the source of recruitment should not make any difference as long as the employee is PwD at the time for consideration of promotion.

“It would be discriminatory and violative of the mandate of the Constitution of India if the respondent [Joseph] is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre,” the court added.

Academics Move SC to Seek Guidelines for Probe Agencies Seizing Digital Devices

The petition says as investigating agencies operate with “unguided power” due to the lack of established rules, it could result in loss, damage and distortion of research work.

New Delhi: A group of academics has moved the Supreme Court seeking directions to the Central and state governments to lay down guidelines when investigative agencies seize, preserve and examine personal digital and electronic devices, the Bar and Bench has reported.

The petitioners – former JNU professor and researcher Ram Ramaswamy; professor at Savitribai Phule Pune University Sujata Patel; professor of Cultural Studies at the English and Foreign Languages University Madhava Prasad; professor of Modern Indian history at Jamia Millia Islamia Mukul Kesavan; and theoretical ecological economist Deepak Malghan – alleged that in the recent past there have been increasing instances where investigating officials have seized such materials.

Given that the probe agencies exercise “unguided power” over the materials in question, the petitioners say it leads to loss, distortion and damage to their precious research work, as the said devices contain almost the entire professional work of academics, and there has to be a civilised way in which probe agencies can do it.

“The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable,” their petition said, according to Bar and Bench.

Also read: Criminal Justice System Being Perverted, Requires Reform: Former Civil Servants

Upon submitting to the court that there is no established procedure or guidelines in the law or even in the police manuals, a bench of Justices Sanjay Kishan Kaul and R. Subhash Reddy on March 26 issued notice to the Central government on the plea.

The petitioners have observed that although the Central Board of Direct Taxes (CBDT) has some reference to a required procedure, there are no such guidelines as far as the National Investigation Agency (NIA) and Central Bureau of Investigation (CBI) are concerned.

On the question of seizure memo presented by investigating officials, the petitioners said it merely mentions that the name of the device confiscated, like a computer, laptop, or a phone, but not at all any specific information.

The petitioners said a copy of what is seized must be with the accused in a form that cannot be modified, including involuntary downloads, access, and interpolation can be detected. This, they say, prevents both probing agencies and the accused from tampering with the material concerned and allow for a fair investigation.

The petition also referred to Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights ratified by India, contending that the same bind on the state parties to protect the moral and material interest in any scientific, literary or artistic work.

The petitioners contended that any information tampered with or damaged during the course of the investigation would be irreplaceable to sciences and social sciences.

SC Revives Free Speech Debate After Issuing Notices to Kamra, Taneja for ‘Contemptuous’ Tweets

The Attorney General’s consent to initiate contempt of court proceedings against Kamra and Taneja appears to have left the bench with no option, but to issue notice, even though it is based on the absence of any ingredients of “criminal contempt”.

A three-judge bench of the Supreme Court comprising Justices Ashok Bhushan, R. Subhash Reddy and M.R.Shah, on Friday, issued notices to stand-up comedian Kunal Kamra and cartoonist Rachita Taneja for their tweets on the apex court, which according to the petitioners, constitute contempt of court.   The bench has asked Kamra and Taneja to respond to the notices within six weeks, while dispensing with their presence during the hearings for the time being.

The bench’s notices to Kamra and Taneja followed Venugopal’s consent to initiate contempt proceedings against them, as requested by some petitioners.

In his recent interview to NDTV, Venugopal said that freedom of speech on social media should not be curbed and any move to do so may invite litigation, adding that it is unbecoming of a “healthy democracy”.  Venugopal, however, justified the contempt cases initiated by the Supreme Court saying it does so only in the rarest of rare cases, that is, only when lines are crossed.

In his interview to the Times of India, Venugopal said he was fed up with the number of requests seeking his consent for initiation of contempt for alleged contemptuous social media posts. “I walk a tightrope and give consent only in extreme cases where there is a deliberate attempt to denigrate the SC or its judges with derogatory posts.  This is a new phenomenon on social media – to dare and attempt to invite contempt proceedings through such posts.  They are daring the SC to take action.  If the SC initiates contempt action against them on the basis of consent given by me in a few cases, it could send a sobering message to all not to abuse the right to free speech on social media platforms,” Venugopal said in that interview. According to him, he has only given consent for filing contempt petitions against those who have used extremely intemperate language and published obnoxious cartoons.

Also read: Kunal Kamra and the Elasticity of Justice

Under Section 15  of the Contempt of Courts Act, 1971, the Supreme Court may take action on its own motion or on a motion made by the AGI or Solicitor General. In practice, if the petitioners who seek to initiate contempt of court proceedings against individuals secure the AGI’s or SG’s consent, then they are deemed to have fulfilled the requirement under Section 15. Although the AG’s consent or lack of consent does not bind the bench, the Ashok Bhushan bench appears to have issued notices to the two out of deference to the AGI.

AG’s vulnerable consent

But the question of whether Kamra and Taneja’s tweets were “extremely intemperate” and “obnoxious”, would remain to be decided. Even if they are, the question whether they could scandalise or tend to lower the authority of any court, let alone interfere with the due course of any judicial proceeding or obstruct the administration of justice in any other manner needs to be answered, in order to fulfil the ingredients of contempt of court, as defined by the Contempt of Courts Act.

According to Venugopal’s reply to one of the complainants, who sought his consent, the four tweets by Kamra were “not only in bad taste but clearly cross the line between humour and contempt of court”. This must have been sufficient for the bench to infer that the proceedings need not be initiated. For the Act is not meant to be used against those opinions which are in “bad taste”  or those which merely cross the line between humour and contempt, as if these are two clearly-drawn binaries.

The AG has clearly failed to give his nuanced view on when humour ceases to be humour, and becomes contempt of court.    Again, the Act does not seek to punish all acts of contempt of court, but only those which scandalise, or interfere with due course of justice, or obstruct the administration of justice. As AG has not formed even a prima facie view on these, his mere observation that the tweets crossed the line between humour and contempt, without throwing light on which of the ingredients of contempt that they satisfied, should not have been taken seriously by the bench.

On Kamra’s tweet in which he was seen holding up his fingers with the text: “One of these two fingers is for CJI Arvind Bobde…ok let me not confuse you, it is the middle one”, Venugopal’s reply was that it was grossly obnoxious, and would equally be an insult to the Supreme Court of India.

Again, the AG is wrong to suggest that it amounts to contempt of court because something which is grossly obnoxious and even intended to be an insult to the Supreme Court of India, can still fall short of the ingredients outlined in the Act, while defining criminal contempt. The Act is not meant to punish all obnoxious views or insults about the court. Even if the AG’s view that the tweet is vulgar and obnoxious is conceded, how does it tend to lower the authority of the court as well as undermine the confidence that the litigant public has on the institution itself – as stated by him in his reply to the complainant – is not at all clear.

Also read: Attorney General Venugopal Would Be Shocked at US Comedians Making Fun of Judges

For the fact remains that it is difficult for anyone including the AG to prove these vague assertions convincingly, as Kamra’s followers on Twitter are most likely to consider them as utterances of a comedian, and enjoy them for their entertainment value.  To suggest that the “confidence of the litigant public on the court has been undermined” is again an impressionistic statement, and is not even one of the listed ingredients of criminal contempt in the Act. Again, merely saying  – as the AG does – that the tweets tended to lower the authority of the court cannot help to connect the dots between the alleged acts of contempt with the definition of criminal contempt.  The AG’s view fails to explain, and merely relies on conjectures and surmises, which are hardly sufficient to form a prima facie view.

Cartoonist Rachita Taneja. Photo: Facebook/Rachita Taneja

Taneja tweeted a cartoon depicting the BJP, Supreme Court, and a reporter with the text “Tu Janta Nahi Mera Baap Kaun Hai (You don’t know who my father is)”. Law student Aditya Kashyap who sought AG’s consent for initiating contempt proceedings against Taneja, also referred to another tweet by her dated August 7, in which she stated: “Let’s not forget how we got here”.  She is also accused of tweeting a caricature suggesting a quid pro quo relationship between the judiciary (as represented by the former CJI, and now Member of Parliament, Ranjan Gogoi) and the Centre in delivering the Ayodhya judgment.

The AG, in his reply to Kashyap, stated that Taneja’s tweets portrayed that the ‘Supreme Court of India was biased towards the ruling party”. Again, the AG appears to have drawn an erroneous inference that a view suggesting a bias of the Supreme Court towards the ruling party could satisfy any of the three ingredients of criminal contempt as defined under the Act (Section 2 [c]).  Similar views have been expressed by many writers in their analytical pieces in newspapers and news websites in recent times.

If a judgment of the court leads one to infer that it is biased towards one of the litigants, it should be considered as a statement of fact, because the court, while settling any dispute, is bound to satisfy one party and disappoint the other. As a corollary, the court is likely to be biased in favour of the stand taken by that party in the case, which is satisfied with the outcome.  The court’s bias in favour of the stand of one party to a dispute may be, without causing any offence to the court, could be interpreted as bias in favour of that party, considering the demands of brevity while tweeting.

As AG’s interviews reveal, he may be said to suffer from doublethink or cognitive dissonance.  One cannot stand for the freedom of social media users – as the AG claims he does – even while recommending initiation of criminal contempt proceedings against what appear to be innocuous tweets.

Also read: Backstory: Journalism and the Power of Laughter

On Thursday, the Bombay high court observed that ‘Tareekh pe Tareekh (adjournment after adjournment)’ is a fact, and criticism regarding frequent adjournment of cases will not be viewed harshly.  Justices S.S. Shinde and M.S. Karnik chose to be generous, when their attention was drawn to a tweet by Sunaina Holey, a litigant, whose case seeking quashing of FIRs against her was being adjourned repeatedly. Holey’s allegedly objectionable tweets against government officials including Maharashtra chief minister, Uddhav Thackeray triggered a slew of FIRs against her.

According to Bar and Bench, Justices Shinde and Karnik had observed on December 15, that judiciary must not waste precious time on contempt hearings which can otherwise be utilised for hearing important questions of law.  Contempt of court powers, Justice Shinde had reportedly said, should be used only as a last resort and should not be used against a lay person criticising courts or judges.

Are the AG and the Supreme Court listening?

SC Orders Uttarakhand Government To Demolish Illegal Religious Structures in Haridwar

The apex court has asked the Uttarakhand government to demolish four religious structures illegally constructed on public land in Haridwar by May 31, 2021.

New Delhi: The Supreme Court on Thursday gave time till May 31, 2021 to Uttarakhand government to demolish four religious structures illegally constructed on public land in Haridwar because of upcoming ‘Kumbh Mela’, which is scheduled to be held in the city from January 2021.

A bench of justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah said, reasons given in the application and especially that ‘Kumbh Mela’ is to commence in 2021 and will end on April 15, 2021, we are of the view that the state should be permitted to demolish the illegal structures by May 31, 2021.

Solicitor General Tushar Mehta, appearing for Uttarakhand government, submitted that the State has undertaken to commence proceedings for the demolition of the four illegal structures in Haridwar and will remove them by May 31, 2021.

Counsel appearing for intervenor Akhil Bhartiya Akhara Parishad  (ABVP) submitted that the structures, which have been made, should not be demolished.

He, however, conceded that the religious structures have been made on the land belonging to the state’s irrigation department but added that the said lands were allocated during Kumbh period to the ‘Parishad’.

The bench said, be that as it may, allotment, if any, is temporary and any permanent structure could not have been constructed and the same is to be demolished.

The four religious structures which are to be demolished are of ‘Nirmohi Akhada’, ‘Nirmani Adi Akhada’, ‘Bhaiyadas Digamber Akhada’ and ‘Niranjani Akhada’ at Bairagi camp of Haridwar.

Also read: Uttarakhand Forest Dept Proposes ‘Temporary’ Use of Rajaji National Park for Kumbh Mela

The state government had filed an appeal against the Uttarakhand high court order of October 8, 2020, by which it had refused to extend the time till the culmination of Kumbh Mela-2021 for demolishing the illegal structures at Haridwar.

The state government had earlier informed the high court that though almost all religious structures built on public lands have been removed in various districts including Dehradun, it would take some time to clear all such structures in Haridwar as many of these properties are used to host Kumbh Mela’.

The high court had taken suo motu cognisance of the issue after top court’s December 7, 2009 order in which it was directed that no unauthorised construction shall be carried out or permitted in the name of a temple, a church, a mosque or a gurdwara etc. on public streets, public parks or other public places.

The top court had directed the state governments to frame a policy in respect of the existing unauthorised constructions of a religious nature, which had already taken place.

On January 31, 2018, the top court had observed that implementation of its 2009 order should be supervised by the concerned high courts, and remitted the matter to the respective high courts for ensuring implementation of the orders in an effective manner.

In compliance with the 2009 order of the top court, the state government framed a policy on May 17, 2016, called ‘The Uttarakhand Policy for Removal, Relocation and Regularisation of Unauthorised Religious Structures on Public Streets, Public Parks and other Public Places, 2016’.

The Uttarakhand high court had on January 2, 2020, while hearing a suo motu case noted that the policy decision of the Uttarakhand government, taken on May 17, 2016, had remained unimplemented for the past more than three and half years.

Why the SC Judgment on Kashmir Internet Shutdown Falls Short of Expectations

New Delhi: Nearly six months after the Centre disconnected the entire population of the Kashmir Valley from the internet following the withdrawal of special status to the erstwhile state of Jammu and Kashmir on August 5 last year, the Supreme Court finally pronounced its judgment on a clutch of petitions challenging the shutdowns.

But though the 130-page judgment delivered by Justice N.V. Ramana, R. Subhash Reddy and B.R. Gavai makes a strong case for limiting the government’s power to restrict a citizen’s access to the internet, it has no explanation for why the court could not strike down restrictions which it found “unreasonable”.

The bench made it clear that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, and that suspension can be resorted to only for temporary duration. “Any order suspending [the] internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration,” the bench held.

Finding that the existing suspension rules neither provide for a periodic review nor a time limitation for an order issued under it, the bench said that the review committee constituted under 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). The bench has also directed the competent authorities to review all orders suspending internet services forthwith.

Also read: Kashmir: Indefinite Suspension of Internet Not Permissible, Review Orders in a Week, Says SC

But what if such periodic review permits continuation of orders suspending the internet, thus making a mockery of the qualifier “temporary” before the word “suspension”? The bench appears to have no answers, except to say that any order suspending internet under the suspension rules is subject to judicial review.

What if the judicial review, guaranteed by the court, itself takes a long time to provide relief as in the present case? Again, the court has no answers, implying that the government could get away presenting a fait accompli, before the court could act, as in the meantime, the citizens subjected to unreasonable restrictions could have availed no immediate relief.

Among the court’s directions, the one given under paragraph (i) suggests whether the bench envisages the possibility that general internet services are not likely to be restored immediately. It says:

“In any case, the state/concerned authorities are directed to consider forthwith allowing government websites, localised/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.”

Check on abuse of Section 144

The bench also made it clear that the state’s power under Section 144 CrPC – restricting a citizen’s freedom to move and assemble – could only be used to prevent danger, if it is in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. More important, the power under Section 144, the bench clarified, cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.

Supreme Court. Photo: PTI

The bench’s insistence that an order under Section 144 CrPC should state the material facts to enable judicial review, and that it 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 is an important check on the future abuse of this power. The bench has made it clear that repetitive orders under Section 144 CrPC would be an abuse of power. This too would limit the arbitrary exercise of this power by the executive.

The bench directed the competent authorities to review the need for continuance of any existing orders under Section 144 in accordance with the law laid down in this judgment. This again could pave the way for future challenges, if the review, directed by the court, proves to be illusory.

Questions before the court

Rather than the operative part, however, it is the substantive discussion in the judgment which explains the compulsions of the bench in answering the prayers of the petitioners in the case. The two petitioners were executive editor of Kashmir Times, Anuradha Bhasin and senior Congress leader Ghulam Nabi Azad.

Also read: Centre, J&K Suppressed Orders Related to Communication Blockade, SC Told

The petitioners sought the setting aside or quashing of any and all order(s), notifications, directions, and or circulars issued by the government under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. They had also sought the immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession.

The third prayer was to ensure free and safe movement of reporters and journalists and other media personnel. Bhasin also prayed for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is not unreasonably curtailed. The bench chose not to answer this prayer.

A question of rights

The court said that the curtailment of internet access is a restriction on the right to free speech, and should be tested on the basis of reasonableness and proportionality. The procedure to be followed for restricting internet services is provided under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules 2017 (herein after “Suspension Rules”) which were notified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was of a temporary nature.

Ghulam Nabi Azad asked how the state balanced the rights of individuals, if it is assumed that there was some material available for the purpose of passing the orders under Section 144 CrPC. He said that the state had not indicated as to the necessity to block landline services. While there can be some restrictions, there can be no blanket orders, as it would amount to a complete ban, he submitted before the bench. A distinction should be drawn while imposing restrictions on social media/mass communication and the general internet. The least restrictive option must be put in place, and the state should have taken preventive or protective measures, he had pleaded. The bench accepted these submissions, but underlined that even the petitioners did not suspect anything mala fide in the restrictions.

Also read: No Social Media, Full Data Access to Cops: Kashmir Internet to Come With 6 Conditions

Azad also pointed out that internet restrictions also impinge on the right to trade. A less restrictive measure, such as restricting only social media websites like Facebook and WhatsApp should and could have been passed, as has been done in the country while prohibiting human trafficking and child pornography websites. Kapil Sibal, appearing for Azad, pointed to orders passed in Bihar and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same could have been followed in this case as well. The bench expressed its dissatisfaction that the respondents did not consider this option at all.

The bench has implicitly rejected the contention of Solicitor General Tushar Mehta that the jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed one-way communication, the internet makes two-way communication by which the spreading of messages is very easy, Mehta had contended. It is not possible to ban only certain websites/parts of the internet, while allowing access to other parts; such a measure was earlier attempted in 2017, but it was not successful, Mehta had argued. But the bench remained unconvinced.

The Jammu and Kashmir administration opposed selective access to internet services based on lack of technology to do the same. If such a contention is accepted, then the government would have a free pass to put a complete internet blockage every time. Such complete blocking/prohibition perpetually cannot be accepted by this court, the bench said.

A Kashmiri woman walks past a jawan as he stands guard in front of closed shops during restrictions, after scrapping of the special constitutional status for Kashmir by the Indian government, in Srinagar, August 22, 2019. Picture taken August 22, 2019. Photo: Reuters/Adnan Abidi/File Photo

The bench saw no valid ground to refuse production of orders restricting free speech before the court.  While the state initially claimed privilege, it subsequently dropped the claim and procured certain sample orders, citing difficulty in producing all the orders before the court.

Freedom of speech and expression through the medium of the 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. Freedom of trade and commerce through the medium of internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6), the bench has held.

But the bench was reluctant to declare that right to access the internet itself is part of freedom of expression. “None of the counsels have argued for declaring the right to access the internet as a fundamental right,” the bench reasoned as a justification for not expanding this precious right, even though the right to carry on any trade or business under Article 19(1)(g), using the medium of internet is constitutionally protected.

Also read: Kashmir: Document Shows J&K Police ‘Monitoring’ Posts on Social Media

The bench rejected the petitioners’ contention that restrictions under Article 19(2) cannot mean complete prohibition. Relying on case law, the court found no basis for it. However, the court agreed that there should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate.

Citing US precedents, the court concluded that any speech which incites imminent violence does not enjoy constitutional protection.

“While the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict,” the bench added.

“Complete broad suspension of telecom services, be it the internet or otherwise, being a drastic measure, 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. The suspension rules have certain gaps, which are required to be considered by the legislature. One of the gaps relates to the usage of the word ‘temporary’ in the title of the suspension rules. Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, an order suspending the aforesaid services indefinitely is impermissible. It is necessary to lay down some procedural safeguard till the deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is not disproportionate,” the bench reasoned.

A government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into consideration the rights of the citizens, and pass appropriate need-based orders, the bench held.

SC judgment on Kashmir internet shutdown by The Wire on Scribd

‘Chillings effects’

But there is one aspect of this judgment which is likely to disappoint those who defend freedom of the press. The bench appears to have erroneously rejected Bhasin’s contention that the internet restrictions have had a “chilling effect” on the freedom of the press.

“To say that the restrictions were unconstitutional because it has a chilling effect on the freedom of the press is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case,” the bench observed.

Bhasin claimed that she was not able to publish her newspaper from August 6 to October 11 last year. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“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 SG submitted that there were other newspapers which were running during the same period”, the bench held, and quipped: “There is no justification for allowing a sword of Damocles to hang over the press indefinitely.”

But as the expression “chilling effect” suggests, individuals who suffer it, are unlikely to leave any evidence of having suffered it, because they would refrain from taking any risk, which could potentially invite the wrath of the government. Therefore, the argument on “chilling effect” of restrictions on internet on the freedom of expression could not be rejected merely because no evidence could be cited to buttress it.

Kashmir: Indefinite Suspension of Internet Not Permissible, Review Orders in a Week, Says SC

The apex court declared the internet as an important conduit for the facilitation of Freedom of Speech and Expression.

New Delhi: The Supreme Court on Friday stated that the Internet ban in Jammu and Kashmir without limiting it to a particular duration is not only violation of the telecom rules, but also of the freedom of speech and expression granted by the Constitution.

The three-judge bench comprising justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai, after hearing a clasp of petitions challenging the constitutionality of the Centre’s decision to lockdown Jammu and Kashmir following reading down of Article 370 since August last year, pointed out that freedom of speech and expression includes the right to recieve and disseminate information.

The apex court asked the J&K administration to review all restrictive orders imposed within a week.

The Internet has been suspended for more than 150 days in Kashmir, making it the longest blackout in any democracy.

The court asked the administration to publish every order of restriction under Section 144 of the Code of Criminal Procedure (CrPC) to enable those affected by them to challenge it. The bench added that any order passed will be subject to judicial review.

The court also observed that trade and commerce are dependent on the internet, and the freedom to practice such trade is constitutionally protected under Article 19(1)(g).

The bench said the government should follow the principles of proportionality to adopt less restrictive measures.

Justice Ramana began delivering the judgment by saying that the court has not “delved into the political intent behind the prohibitory orders”.

“Our limited concern is to find a balance regarding security and liberty of people. We only here to ensure citizens are provided their rights. We will not delve into the political intent behind the orders given,” Justice Ramana said, according to LiveLaw.

“Kashmir has seen a lot of violence. We will try our best to balance the human rights and freedoms with the issue of security”, he added.

Supreme Court of India in New Delhi. Credit: PTI/Atul Yadav

Petitioners had argued the restrictions were unconstitutional

The bench had reserved its judgment on a bunch of petitions challenging the constitutionality of the lockdown in Kashmir on November 27. Petitions had been filed by Anuradha Bhasin, the executive editor of Kashmir Times, Congress leader Ghulam Nabi Azad and some others. The petitioners argued that the restrictions imposed by the government failed to satisfy the tests of reasonableness and proportionality, which were laid down by the apex court in the Puttaswamy case.

They argued that the restrictions had paralysed the lives of 7 million people and that sectors like education, medical care, business, agriculture and tourism have been hit by the lockdown.

While advocates Vrinda Grover, Kapil Sibal, Dushyant Dave and Huzefa Ahmadi had argued on behalf of the petitioners, the Centre and J&K administration’s defence was carried out by the attorney general and solicitor general respectively.

The Centre and the J&K administration responded by submitting that the restrictions were necessary and in the interest of national security. They justified the internet ban as a necessary action to cut off coordination amongst militants. Terming these moves as preventive steps, they said the restrictions had resulted in the ‘historic’ decision being implemented ‘without bloodshed’.

In December, hearing a bunch of petitions challenging the ban on the internet by the Assam government in response to public protests against the Citizenship (Amendment) Act, the Gauhati high court ordered the suspension to be lifted. It said the government had failed to show any evidence to satisfy the court that there were “disruptions on the life of the citizens of the state with incidence of violence and deteriorating law and order situation which would not permit relaxation of mobile internet services.”

SC judgment on Kashmir internet shutdown by The Wire on Scribd

Activists, political parties hail judgment

The J&K People’s Democratic Party (PDP), whose leader Mehbooba Mufti has been in detention since August, tweeted saying the judgment “reinstates our faith in the judiciary”.

Online civil liberties activists and lawyer Mishi Choudhary issued a statement praising the Supreme Court’s order to end the internet shutdown. She said the “dubious practice” of using Section 144 to shut the Internet down had “become a norm in the past few years”, resulting in India becoming the shutdown capital of the world.

“Although the order grants no immediate relief to the people of Kashmir who have been without internet for the past 159 days but review under Telecom Suspension Rules has been ordered. Let’s hope this is the end of this repressive practice unworthy of a democracy with ambitions of a digital superpower,” she said.

Choudhary praised the apex court for recognising, like the Kerala high court did, the right to freedom of speech and expression through the internet to be part of Article 19(1)(a). “Hopefully, from now on authorities will follow their own rules and not circumvent procedures to curb legitimate expression,” the statement adds.

Apar Gupta of the Internet Freedom Foundation noted in a series of tweets that the principal direction given by the Supreme Court is for an administrative review of the internet shutdown in Jammu and Kashmir with a week. “This almost seems that the primary function of judicial review has been avoided by the Supreme Court, which may have only laid down broad principles” on the impermissibility of an indefinite internet shutdown.

Reacting to the judgement, petitioner Anuradha Bhasin told The Wire, “I have not yet gone through the judgment word by word but from the gist of it I welcome it. I can see three significant points in the judgment. One, it has said that internet is a fundamental right and inviolable. Two, that the government can’t arbitrarily deny it for a prolonged period. Three, the government has to bring to public domain the reasons clearly why it took such a decision. This has a long term consequence.”

She, however, added that the judgment doesn’t bring immediate relief to the people of Jammu and Kashmir. “While it said that internet is part of fundamental rights but already it has already been five months. We can’t wish it away under what restrictions the media in Jammu and Kashmir have been working in these months. It is not merely about media rights and our privileges but it is also about media bringing to public domain the voices of people, the marginalised. So that way, it has impacted every person in Jammu and Kashmir.”

She said, “The ball is now in the government’s court and we hope that it would act on the lines of the spirit of the judgment.”