Page:Anuradha Bhasin vs Union of India and Ors.pdf/11

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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.