By Mayur Kulkarni
Introduction
A three-judge bench of the Supreme Court handed down its judgment in the case that challenged the five-month-long internet shut-down and an Emergency-like imposition of Section 144 Cr.P.C, in Jammu and Kashmir post the de-operationalization of Article 370. The Court inter alia held that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet is protected under Article 19(1)(g) and the power to impose restrictions under Section 144 Cr.P.C., is subject to the principles of ‘proportionality’. In this post, I would discuss the reasoning and effects of the application of the principles of proportionality to the power to impose restrictions under Section 144 Cr.P.C.
A note on Section 144 Cr.P.C
Section 144 Cr.P.C empowers the State to impose certain restrictions on the activities of a person or a group of persons in a particular area or in general to prevent an urgent breach of public peace and tranquility. Section 144 CrPC confers wide-ranging powers on the State, but is however subject to certain safeguards also. A seven-judge bench of the Supreme Court in Madhu Limaye v. Sub Divisional Magistrate, Monghgyr has laid down that the power under Section 144 Cr.P.C must be
(a) exercised only in urgent situations where the “ the emergency is sudden and the consequences sufficiently grave”
(b) exercised in a judicial manner which can stand further judicial scrutiny
(c) exercised only when the situation is sufficiently grave to pose a threat to public order.
However, it has been observed that these safeguards have not been adequate to curb the suppressive tendencies of the state. The State has been taking shelter in the inherent vagueness of these safeguards to impose serious restrictions on the fundamental rights of the citizens under the camouflage of safeguarding public peace and tranquility. Hence there was a dire necessity to add further restrictions on the powers of the State under Section 144 Cr.P.C. so as to prevent abuse of such powers and strike a balance between fundamental rights of citizens and safeguarding public peace and tranquility.
Powers under Section 144 Cr.P.C and the proportionality test.
In the present case, the Petitioners argued that the imposition of perpetual restrictions under Section 144 Cr.P.C must not only be tested on the aforementioned safeguards but also on the reasonableness and proportionality of the imposition of restrictions.
In light of these contentions, the Court reiterated its decision in Ramlila Maidan Incident case, wherein it was held that an onerous duty is cast upon the Magistrate to impose the least invasive restriction possible and that restrictions should never be excessive in nature or in time. The court was of the opinion that “there has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other.” The Court further noted that the reasons for the imposition must be reasonable, least invasive and bona fide. The restrains should not be allowed to exceed the constraints of the situation at hand.
The Court also relied on its judgment in the Modern Dental College case, wherein the Court had laid down a four-fold test to determine the permissibility of a limitation on any constitutional right. The test is as follows :
- the limitation must be for a proper purpose
- there must be a rational connection between the limitation imposed and the purpose to be fulfilled
- non-availability of alternative measures that may similarly achieve the same purpose with a lesser degree of limitation; lastly
- there needs to be balancing (proportionality strict sense) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
Thus, relying on these judgments and also on the K. S. Puttaswamy (I) ruling the Court held that the indefinite shut down of internet and continuous imposition of restrictions under Section 144 Cr.P.C in Jammu and Kashmir might fulfill the other tests but clearly fails the proportionality test as envisaged by Puttuswamy (I).
‘Proportionality test’ as a tool to balance conflicting rights
Striking the right balance between two conflicting rights has always been a contentious question faced by the Constitutional Courts world over. The task of balancing is easier when there is a conflict between two competing rights. However, when there is a conflict between a right and a limitation the question becomes more complex. This is also true when the conflict is between individual rights, like that of the right to move around freely and the rights of the public at large, like public peace and tranquility. In such situations, the Courts face a dilemma wherein, neither of these rights can be given prominence over the other.
In the present case, there is a conflict between individual rights of free speech and expression and free movement guaranteed by Article 19 of the constitution vis-à-vis the maintenance of public peace and tranquility. Hence, the Court has used the ‘proportionality test’ as an interpretational tool to strike the right balance between these conflicting rights.
The Court, in this case, provided two-pronged reasoning for the use of the proportionality test. Firstly that proportionality is embedded in the ‘reasonable restrictions’ enshrined in Article 19 and secondly, that proportionality facilitates the harmonious coexistence of conflicting rights and limitations.
Explaining the connection between ‘reasonable restriction’ under Art. 19 and the principle of proportionality, the Court opined that proportionality is embedded in the reasonable restriction that is being placed on the corresponding right under Article 19. The ‘reasonable restriction’ seeks to strike a balance between the freedom guaranteed by any sub-clause of clause (1) of Article 19 and the social contract permitted by any of the clauses (2) to (6). Thus the expression ‘reasonable’ connotes that the limitation imposed on the enjoyment of any right must not be arbitrary or of an excessive nature beyond what is required in the interests of the public. It is here that the concept of proportionality comes into play as a proper criterion to strike the right balance. Therefore, when a law limits a constitutional right, such a limitation is constitutional only if is proportional.
Similarly, the Court, while explaining the harmonious coexistence of rights and limitations, invoked the Oakes test propounded by the Supreme Court of Canada in R. v. Oakes. The Oakes test lays down that in order to justify a limitation there must be one, the objective sought to be achieved by the limitation must be of sufficient importance and two, the means chosen must be ‘reasonable and demonstrably justified’. Being ‘reasonable and demonstrably justified’ includes the proportionality test in it. Even though the nature of proportionality may vary depending on the circumstances, there are three constant components of proportionality which needs to be fulfilled. First, the measures must be rationally connected to the objective. Second, the means should impair ‘as little as possible’ the right in question. And third, there must be proportionality between the effects of the measures which are responsible for limiting the right and the objective sought to be achieved.
In light of such reasoning, the Court is of the opinion that the recurring imposition of restrictions under Section 144 Cr.P.C fails to pass the proportionality test. Such imposition of restrictions is clearly excessive than what is required in the interest of the public and thus fails the proportionality test embedded in the ‘reasonable restriction’ under Article 19. Similarly, though there is rational connection between the imposition of restrictions under Section 144 and maintenance of public peace and tranquility, the perpetual imposition fails to impair ‘as little as possible’ and also there is no proportionality whatsoever in the effects of the imposition i.e an emergency-like curtailment of fundamental rights and the objective sought to be achieved i.e maintenance of public peace and tranquility. Hence the Court held that the continuous imposition of restrictions under Section 144 Cr.P.C as unconstitutional.
Conclusion
Subjecting the powers of the State to impose restrictions under Section 144 Cr.P.C to the ‘proportionality test’ is an incremental advance in law. Previously, the ‘proportionality test’ was only applied to the legislative actions of the State i.e the statutes restricting the fundamental rights were expected to pass the ‘proportionality test’ as in case of Puttuswamy (I). Whereas, by subjecting the powers of the State under Section 144 Cr.P.C to the ‘proportionality test’ the Court has brought both judicial powers of the Divisional Magistrate and the executive powers of the Executive Magistrate under the ambit of proportionality. By widening the scope of the ‘proportionality test’ the Court has provided an additional safeguard against the executive power to impose restrictions and curtail fundamental rights. Such extended scope of the ‘proportionality test’ would go a long way in checking the unreasonable, excessive and arbitrary exercise of powers under Section 144, Cr.P.C by the Executive branch of the State.
[The author is a second-year B.Com LL.B student at the Gujarat National Law University, Gandhinagar.]
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