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

herein.

 

• 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

followed.

 

• 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

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."

 

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