Learned senior counsel submitted that Articles 19 and 21 of
the Constitution require that any action of the State must
demonstrate five essential features: (a) backing of a ‘law’, (b)
legitimacy of purpose, (c) rational connection of the act and
object, (d) necessity of the action, and (e) when the above
four are established, then the test of proportionality.
At the outset, learned senior counsel submitted that it is
necessary to test the validity of the orders by reference to
the facts and circumstances prevailing on the date of
passing of the said orders, i.e., 04.08.2019.
Learned senior counsel submitted that the orders that have
not been published cannot be accorded the force of law. The
necessity of publication of law is a part of the rule of natural
justice. Not only must the orders be published, it is also
necessary that these orders be made available and
accessible to the public. The State cannot refuse to produce
the orders before the Court or claim any privilege.
The learned senior counsel further submitted that,
notwithstanding the expediency of the situation, the
necessity of a measure must be shown by the State. The
people have a right to speak their view, whether good, bad
or ugly, and the State must prove that it was necessary to
restrict the same.
On the point of proportionality, the learned senior counsel
submitted that the test of proportionality was upheld by this
Court in the case of K. S. Puttaswamy v. Union of India,
(2017) 10 SCC 1 (hereinafter “K. S. Puttaswamy (Privacy9J.)”) and therefore the proportionality of a measure must
be determined while looking at the restrictions being
imposed by the State on the fundamental rights of citizens.
The learned senior counsel pointed out that it is not just the
legal and physical restrictions that must be looked at, but
also the fear that these sorts of restrictions engender in the
minds of the populace, while looking at the proportionality
of measures.
Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P.
(Crl.) No. 225 of 2019
14
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