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Supreme Court rules same orders under Section 144 Cr.P.C. passed repetitively by Magistrate as illegal.


Supreme Court of India

Justice  N V Ramana, Justice R. Subhash Reddy and Justice B. R. Gavai

The SC [ GHULAM NABI AZAD V. UNION OF INDIA AND ANR. ] directs publishing of all orders issued under Section 144 Cr.P.C, and also holds that order suspending internet services cannot be for indefinite period, and repetitive orders under Sec 144 Cr.P.C. shall be abuse of process of law. Following direction were laid down:

"In this view, we 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



            • The existing Suspension Rules neither provide for a periodic

              review 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



                  • In any case, the State/concerned authorities are directed to

                    consider   forthwith   allowing   government   websites,

                    localized/limited e­banking 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



                      • 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."


                              With the aforesaid direction the petition was disposed of - putting end to ongoing illegal practices and abuse of law.

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