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  • 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 (Privacy­ 9J.)") 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

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