and order’ situation, but the orders do not indicate any
existing law and order issue, or apprehension thereof.
Learned senior counsel pointed out that the order of the
Magistrate under Section 144, Cr.P.C. cannot be passed to
the public generally, and must be specifically against the
people or the group which is apprehended to disturb the
peace. It is necessary for the State to identify the persons
causing the problem, and an entire State cannot be brought
to a halt. Moreover, he has contended that there was no
application of mind before passing those orders.
While submitting that it could be assumed that there was
some material available for the purpose of passing the
orders under Section 144, Cr.P.C., the question which then
arises is how the State balances the rights of individuals.
The learned senior counsel, with respect to the
communications’ restrictions, submitted that the State had
not indicated as to the necessity to block landline services.
He further submitted that the communications/Internet
restrictions which were imposed under the Indian Telegraph
Act, 1885 [hereinafter “Telegraph Act”] needs to follow the
provisions of Section 5 of the Telegraph Act, in line with
Article 19 of the Constitution. While there can be some
restrictions, there can be no blanket orders, as it would
amount to a complete ban. Instead, 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. Ultimately,
the State needs to balance the safety of the people with their
lawful exercise of their fundamental rights.
On internet restrictions, the learned senior counsel
submitted that such restrictions not only impact the right to
free speech of individuals but also impinges on their right to
trade. Therefore, 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 India while prohibiting human trafficking and child
pornography websites. The learned senior counsel 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.
11
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