Anuradha Bhasin vs Union of India & Ors.

Doctrine/ Principles – Doctrine of proportionality – Requirement of – Constitution of India – Art. 19(1)(g) – Held: In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined – It ought to be noted that such goal must be legitimate – However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal – The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure – It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances – Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

Doctrine/ Principles – Doctrine of Proportionality – Immediate impact of restrictions upon the realization of the fundamental rights – Held: To consider the immediate impact of restrictions upon the realization of the fundamental rights, the decision maker must prioritize the various factors at stake – Such attribution of relative importance is what constitutes proportionality – It ought to be noted that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate – The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction – The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.

Constitution of India – Indefinite internet shut down by the Government – Validity of – Held: One of the gaps must be highlighted relates to the usage of the word ‘temporary’ in the title of the ‘Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 ‘– Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation – Keeping in view the requirements of proportionality, an order suspending the aforesaid services indefinitely is impermissible – 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, the Review Committee constituted u/r. 2(5) of the Suspension Rules directed to conduct a periodic review within seven working days of the previous review, in terms of the requirements u/r. 2(6). Words and Phrases – ‘emergency’ – The word ‘emergency’ has various connotations – Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property – The ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis.

Code of Criminal Procedure, 1973 – s.144 – Various Authorities passed orders restricting movements u/s. 144 on 4.8.2019 in the State of Jammu and Kashmir – Validity of – Petitioners contended that there had to be a circumstance on 4.8.2019 showing that there would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquility and Government could not have passed such orders in anticipation or on the basis of apprehension – Held: The power u/s. 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 – While passing orders u/s.144 Cr.P.C., it is imperative to indicate the material facts necessitating passing of such orders – Normally, it should be invoked and confined to a particular area or some particular issues – In the instant case, it was contended by the petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed u/s. 144 Cr. P.C. and the passing of these orders need to be looked at in this perspective – In response, it is the case of the respondent, that it is an issue of national security and cross border terrorism – Although, the restrictions were removed on 27.9.2019, thereby rendering the present exercise into a virtually academic one, however, the non-compliance of law by the State cannot be ignored – Hence, the authorities directed to follow the principles laid down by the Supreme court and upheld the rules of law.

Code of Criminal Procedure, 1973 – Order passed u/s. 144 – Judicial review – Scope of – Held: The existence of the power of judicial review is undeniable – It is for the Magistrate and the State to make an informed judgment about the likely threat to public peace and law and order – The State is best placed to make an assessment of threat to public peace and tranquillity or law and order – However, the law requires them to state the material facts for invoking this power – This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power.

Constitution of India – Freedom of Press – Restriction on – The petitioner alleged that the cumulative effect of various restrictions on 4.8.2019 in the State of Jammu and Kashmir, such as the imposition of s.144 Cr. P.C. and restriction on internet and communication, has indirectly affected the freedom of the press in the valley – The contention of petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions – Held: One possible test of chilling effect is comparative harm – In this frame-work, the Court is required to see whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period – It is the contention of the petitioner that she was not able to publish her newspaper from 06.08.2019 to 11.10.2019 – However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area – Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose – On the other hand, there were other newspapers which were running during the aforesaid time period – In view of these facts, and considering that the aforesaid petitioner has now resumed publication, it is not fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Doctrine/ Principles – Principle of chilling effect – discussed. Disposing of the writ petitions, the Court

HELD :

PRODUCTION OF ORDERS

1. There are two separate types of reasoning that mandate this Court to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself connote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and not to take away these rights in an implied fashion or in casual and cavalier manner. [Para 15][847-B-C]

2. Second, there is no dispute that democracy entails free flow of information. There is not only a normative expectation under the Constitution, but also a requirement under natural law, that no law should be passed in a clandestine manner. [Para 16][847-D]

3. As a general principle, on a challenge being made regarding the curtailment of fundamental rights as a result of any order passed or action taken by the State which is not easily available, the State should take a proactive approach in ensuring that all the relevant orders are placed before the Court, unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be specifically claimed by the State on affidavit. In such cases, the Court could determine whether, in the facts and circumstances, the privilege or public interest claim of the State overrides the interests of the Petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the State justifies such redaction on the grounds, as allowed under the law. [Para 17][847-F-G; 848A]

4. In the present case, while the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court. In the opinion of this Court, this is not a valid ground to refuse production of orders before the Court. [Para 18][848B] FUNDAMENTAL RIGHTS UNDER PART III AND

RESTRICTIONS THEREOF

5. The internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6). [Para 27][850-D-E]

6. It has been argued by the Petitioners that the restrictions under Article 19 of the Constitution cannot mean complete prohibition. In this context, the aforesaid contention cannot be sustained in light of a number of judgments of this Court wherein the restriction has also been held to include complete prohibition in appropriate cases. [Para 32][851-F]

7. The study of various case laws points to three propositions which emerge with respect to Article 19(2) of the Constitution. (i) Restriction on free speech and expression may include cases of prohibition. (ii) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate.

(iii) Whether a restriction amounts to a complete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case. [Para 33][852-A-C]

8. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the requirements under Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict. [Para 46][856D]

9. The doctrine of proportionality is not foreign to the Indian Constitution, considering the use of the word ‘reasonable’ under Article 19 of the Constitution. In a catena of judgments, this Court has held “reasonable restrictions” are indispensable for the realisation of freedoms enshrined under Article 19, as they are what ensure that enjoyment of rights is not arbitrary or excessive, so as to affect public interest. [Para 53][858-C-D]

10. The requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review. [Para 70][870-E-G]

11. The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation. [Para 71][871A]

12. To consider the immediate impact of restrictions upon the realization of the fundamental rights, the decision maker must prioritize the various factors at stake. Such attribution of relative importance is what constitutes proportionality. It ought to be noted that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed. [Para 72][871-B-C]

13. There is ample merit in the contention of the Government that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India. This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech. In this regard the Government is required to consider various options under Article 19(2) of the Constitution, so that the brunt of exigencies is decimated in a manner which burdens freedom of speech in a minimalist manner. [Para 76][871-G-H; 872-A]

INTERNET SHUTDOWN

14. The complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy. Having said so, it is noted that the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 have certain gaps, which are required to be considered by the legislature. [Para 99][881-C]

15. One of the gaps which must be highlighted relates to the usage of the word “temporary” in the title of the Suspension Rules. Despite the above, there is no indication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, this Court is of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this context, it is necessary to lay down some procedural safeguard till the aforesaid deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is not disproportionate. Therefore, it is directed 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). The Review Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. It is clarified that looking to the fact that the restrictions contemplated under the Suspension Rules are temporary in nature, the same must not be allowed to extend beyond that time period which is necessary. [Para 100][881-D-G]

RESTRICTIONS UNDER SECTION 144 OF CRPC

16. The safeguards in Section 144, Cr.P.C. are discussed below and deserve close scrutiny.

(a) Prior Inquiry before issuing Order: Before issuing an order under Section 144, Cr.P.C., the District Magistrate (or any authorised Magistrate) must be of the opinion that:

(i) There is a sufficient ground for proceeding under this provision i.e. the order is likely to prevent obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity; and

(ii) Immediate prevention or speedy remedy is desirable. The phrase “opinion” suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power conferred under this provision.

(b) Content of the Order: Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the “material facts” of the case. The “material facts” must indicate the reasons which weighed with the Magistrate to issue an order under Section 144, Cr.P.C.

(c) Communication of the Order: The Order must be served in the manner provided under Section 134, Cr.P.C., i.e., served on the person against whom it is made. If such a course of action is not practicable, it must be notified by proclamation and publication so as to convey the information to persons affected by the order. Only in case of an emergency or where the circumstances are such that notice cannot be served on such a person, can the order be passed ex parte.

(d) Duration of the Order: As this power can only be exercised in urgent cases, the statute has incorporated temporal restrictions—the order cannot be in force for more than two months. However, the State Government can extend an order issued under Section 144, Cr.P.C. by a Magistrate for a further period up to six months if the State Government considers it necessary for preventing danger to human life, health or safety or preventing a riot.

Although, a two-month period outer limit for the Magistrate, and a six-month limit for the State Government, has been provided under Section 144, Cr.P.C. but the concerned Magistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration.

(e) Act Judicially while Rescinding or Modification of the Order : The Magistrate can rescind or alter any order made by him on his own or on an application by any aggrieved person. Similarly, the State Government may also on its own motion rescind or alter any order passed by it, extending an order passed under Section 144, Cr.P.C. While considering any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously. [Para 108][884-G-H; 885-B-H; 886A-C]

17. The orders passed under Section 144, Cr.P.C. have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or un-notified. This Court, in the case of Babulal Parate, also stressed upon the requirement of having the order in writing, wherein it is clearly indicated that opinion formed by the Magistrate was based upon the material facts of the case. [Para 129][896-H; 897-A-B]

18. While passing orders under Section 144, Cr.P.C., it is imperative to indicate the material facts necessitating passing of such orders. Normally, it should be invoked and confined to a particular area or some particular issues. However, in the present case, it is contended by the Petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed under Section 144, Cr.P.C. and the passing of these orders need to be looked at in this perspective. In response, it is the case of the Respondent, although it has not been stated in clear terms, that it is an issue of national security and cross border terrorism. It is cautioned against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. [Para 130][897-E-G]

19. The existence of the power of judicial review is undeniable. The opinion that it is for the Magistrate and the State to make an informed judgement about the likely threat to public peace and law and order. The State is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. [Para 132][899-B-C]

20. In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher. [Para 133][899-D-E]

21. An order passed under Section 144, Cr.P.C. should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the application of mind of the officer concerned, to the controversy involved and the conclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law. [Para 134][899-F]

22. Although the restrictions have been allegedly removed on 27.09.2019, thereby rendering the present exercise into a virtually academic one, this Court cannot ignore non-compliance of law by the State. This case is not just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this Court has to caution the Government. Hence, the authorities directed to follow the principles laid down by this Court and uphold the rule of law. [Para 138][900-F]

23. The legal position on Section 144, Cr.P.C is summarised as follows:

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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. [Para 140][901-B-F] FREEDOM OF THE PRESS

24. There is no doubt that the freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society. Squarely however, the contention of the Petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions. [Para 146][904C]

25. The principle of chilling effect was utilized initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment. This analysis was replicated in the context of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon concerns have been accepted in the case of K.S. Puttaswamy (Privacy-9J.). [Para 148][904-F-G]

26. The widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism. At this juncture, one may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that:‘‘Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case. [Para 150][905D-G]

27. One possible test of chilling effect is comparative harm. In this frame-work, the Court is required to see whether the impugned restrictions, due to their broad-based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06-08-2019 to 11-10-2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose. [Para 151][905-H; 906-A-B]

28. In this view, the following directions are issued:

a. 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.

b. This Court declares 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. c. 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. d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.

e. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.

f. 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, the Review Committee constituted under Rule 2(5) of the Suspension Rules directed to conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). g. The respondent State/competent authorities directed to review all orders suspending internet services forthwith. h. 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. i. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately. [Para 152][906-D-H; 907-AE]

Ram Jethmalani v. Union of India, (2011) 8 SCC 1 : [2011] 8 SCR 725; K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1; CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 145; Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 : [1950] SCR 759; State of Madras v. V.G. Row, AIR 1952 SC 196 : [1952] SCR 597; Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853 : [1970] 1 SCR 156; Om Kumar v. Union of India, (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693; State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337 : [1970] 3 SCR 181;

Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39 : [1982] 1 SCR 1137; Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353; R. v. Oakes, [1986] 1 SCR 103 (Can) SC; K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 : [2017] 10 SCR 569; Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 : [1976] 2 SCR 1060; People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301 : [1996]

10 Suppl. SCR 321; B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 : [1987] 1 SCR 1054; Madhu Limaye v. Sub-Divisional Magistrate,

Monghgyr, (1970) 3 SCC 746 : [1971] 2 SCR 711; Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC

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1 Suppl. SCR 486; Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634; Narendra Kumar v. Union of India, [1960] 2 SCR 375; State of Maharashtra v. Himmatbhai Narbheram Rao, [1969] 2 SCR 392; Sushila Saw Mill v. State of Orissa, (1995) 5 SCC 615 : [1995] 2 Suppl. SCR 426; Pratap Pharma (Pvt.) Ltd. v. Union of India, (1997) 5 SCC 87 : [1997]

3 SCR 492; Dharam Dutt v. Union of India, (2004) 1 SCC 712 : [2003] 6 Suppl. SCR 151; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC

534 : [2005] 4 Suppl. SCR 582; Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : [1981] 1 SCR 206; Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Coal Ltd., (1983) 1 SCC 147 : [1983] 1 SCR 1000; Maneka Gandhi v. Union of India, (1978) 1 SCC

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Channing Arnold v. The Emperor, (1914) 16 Bom LR 544; Bennett Coleman v. Union of India, (1972) 2 SCC

788 : [1973] 2 SCR 757; Sakal Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842; A.K Gopalan v. State of Madras, AIR 1950 SC 27 : [1950] SCR 88; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 : [1970] 3 SCR 530; National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1– referred to.

Ex parte Vallandigham, 28 F. Cas. 874 (1863)]; Abraham v. United States, 250 U.S. 616 (1919); Dennis v. United States, 341 US 494 (1951); Brandenburg v. Ohio, 395 US 444 (1969); R v. Goldsmith, [1983] 1 WLR 151, 155; Kwok Wing Hang and Ors. v. Chief Executive in Council, [2019] HKCFI 2820; Weiman v. Updgraff,

344 U.S. 183; Laird v. Tantum, 408 U.S. 1 (1972); Clapper v. Amnesty Int’l, USA, 568 U.S. 113 (2013)]; Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999) – referred to.

Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, The Harvard Law Review, 71(4), 630,

651 [February, 1958]; Gregory S. McNeal, Cyber Embargo: Countering the Internet Jihad, 39 Case W. Res. J. Int’l L. 789 (2007); Kai Möller, Constructing the Proportionality Test: An Emerging Global

Conversation, Reasoning Rights Comparative Judicial Engagement (Hart Publishing, 2014); Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, (2002) 47 – referred to.