Section 144 cannot be used to prevent legitimate expression of democratic rights: The Supreme Court’s judgment in the Kashmir restrictions matter

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.”

Production of Orders

The 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."