Follow Us:

Section 144 not a tool to suppress difference of opinion, repetitive orders ‘abuse of power’: SC

The top court said Section 144 of CrPC is a remedial and preventive measure and must be subject to the test of proportionality and used only if there is a likelihood of violence.

SNS | New Delhi |

The Supreme Court on Friday observed that the repetitive imposition of Section 144 in Jammu and Kashmir amounts to an “abuse of power” and needs to be justified.

In a landmark judgement regarding restrictions in Jammu and Kashmir following the abrogation of Article 370 on August 5 last year, the apex court said that all orders of suspension of telecom services and those related to Section 144 of CrPC must be reviewed by the concerned authority within seven days.

The top court said Section 144 of CrPC is a remedial and preventive measure and must be subject to the test of proportionality and used only if there is a likelihood of violence and danger to public safety.

“Section 144 CrPC (prohibitory orders) cannot be used as a tool to suppress difference of opinion or grievance of any democratic rights. Constitution protects expression of divergent views… cannot be the basis for invocation of Section 144 unless there is sufficient material to show incitement to violence or threat to public safety,” the apex court ruled.

“Repetitive orders under Section 144 would be an abuse of power,” the court added.

The Supreme Court further said magistrates while passing prohibitory orders, should apply mind and follow the doctrine of proportionality.

Another major takeaway from the Supreme Court’s verdict was on internet suspension in the Valley.

The court observed that the use of Internet enjoys constitutional protection as a tool, which is under the ambit of freedom of speech and expression and also enables people to carry on with their respective profession.

It said the suspension of internet indefinitely was “unconstitutional”.

The Supreme Court has also asked the administration to consider restoring internet services to facilitate e-banking and trade in Jammu and Kashmir.

A three-member bench, consisting of Justices NV Ramana, R Subhash Reddy and BR Gavai, observed its limited concern is to find a balance between liberty of citizens and their security, as in this case liberty and security are at loggerheads.

The apex court orders come as a setback for the Centre that has been garnering support for its move in the Valley.

On November 21, the Centre had justified restrictions imposed in Jammu and Kashmir after the abrogation of provisions of Article 370 and said that due to the preventive steps taken, neither a single life was lost nor a single bullet fired.

The Government also claimed that for many years, terrorists had been entering from across the border and civilians were being held captive by local militants and separatist organisations, which have reduced with the imposition of restrictions.

The three-judge bench of the Supreme Court had reserved its judgment in the matter on November 27, 2019, even as it observed that it was “more concerned” about the future.

The petitioners said that the restrictions had thrown life out of gear in the region and affected all sections of people, including farmers and daily wagers. They also questioned the curbs on internet and mobile communication and said this had a crippling effect on the lives of people.