Internet Shutdown : Supreme Court Refuses To Entertain Plea By Journalists' Association For Implementation Of 'Anuradha Bhasin' Judgment

A bench of Justices BR Gavai, Dipankar Dutta and Aravind Kumar was hearing a miscellaneous application filed through Advocate-on-Record Prateek K Chadha, in the Anuradha Bhasin case, filed by the executive editor of a Kashmiri daily challenging the communication shutdown in Jammu and Kashmir from August 5, 2019, following the abrogation of its special status under Article 370 of the Constitution. In January 2020, the Court delivered the verdict in the case, inter alia, ruling against indefinite suspension of internet and mandating the publication of shut down orders.

The non-profit's application, an extension of the organisation's previous intervention in the Anuradha Bhasin case, emphasised three specific points:

First, the foundation urged the court to direct competent authorities to proactively publish all orders restricting telecommunication services, including the Internet to enable affected individuals to challenge these orders before appropriate forums. Second, the organisation called for the necessary information regarding internet shutdown orders to be provided to citizens through Right to Information (RTI) requests, stressing that such requests should not be denied by claiming a blanket exemption. Third, the foundation sought clarification that the source of authority for restricting access to telecommunication services, including the Internet, is the Temporary Telecom Suspension (Public Emergency or Public Safety) Rules, 2017, and that shutdown orders cannot be passed under Section 144 of the Code of Criminal Procedure, 1973.

Despite the court's clear directives in January 2020, multiple state governments have imposed internet shutdowns without proactively publishing the legal orders authorising these suspensions, the foundation argued, citing instances in Arunachal Pradesh, Madhya Pradesh, Manipur, Meghalaya, Rajasthan, Uttar Pradesh, and West Bengal. These states have allegedly failed to adhere to the court's directives, raising questions about the transparency and legality of such actions.

Moreover, the foundation also pointed out that state governments have refused to provide information in response to Right to Information requests filed by civil society organisations. Such RTIs were sent to the governments of Madhya Pradesh, Meghalaya, West Bengal, and Uttar Pradesh, seeking specific details regarding their compliance with the Anuradha Bhasin judgment.

During the hearing today, Senior Advocate Nakul Dewan, appearing for the applicant, expressed concerns over state governments shutting down internet services “as and when required”.

“It depends upon the situation prevailing in those states,” came Justice Gavai's counter.

We are not questioning that, Dewan replied, before adding, “It is their prerogative to shut down the internet if the situation calls for such a response. There could be a law-and-order situation. But our difficulty is…”

“You may have many difficulties, Mr Dewan, but how is your application maintainable in the first place in a disposed of matter where we have virtually become functus officio?” Justice Kumar asked. The judge conceded, “At the most, you can ask for a review.”

When Dewan pointed out that the court had issued notice in this application in May this year, Justice Gavai said, “Merely because we have committed an error by issuing notice…”

He added –

“We frown upon this practice of reopening disposed of matters by filing civil applications. In two matters, we have imposed a cost of Rs 10 lakhs each.”

In response, Dewan sought to distinguish between private matters and public interest litigation, saying,“In private matters, filing miscellaneous applications in a disposed of matter is inappropriate because parties try to circumvent orders by filing such applications. This is, however, not a private matter. When we appeared in the Anuradha Bhasin matter, we were doing something for the public…”

“Thank you. Dismissed,” Justice Gavai firmly said. Ultimately, the bench allowed the Foundation for Media Professionals to withdraw its application.

Background

The main petition was filed by Anuradha Bhasin, executive editor of Kashmir Times and Rajya Sabha MP Ghulam Nabi Azad challenging the curbs on the internet, media and other prohibitions imposed in the Kashmir region following the abrogation of the special status of the erstwhile state of Jammu and Kashmir in August 2019.

A bench headed by Justice NV Ramana had declared that the freedom of speech and expression and the freedom of trade and commerce through the medium of the internet are constitutionally protected rights under Articles 19(1)(a) and Articles 19(1)(g), respectively. It also noted that the restriction on fundamental rights should be in line with the mandate of Articles 19(2) and (6) and in consonance with the test of proportionality.

The Court had further observed -

“Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution (para 26)”.

The judgment also covered other issues, such as the determination of prerequisites for internet shutdown, impermissibility of indefinite suspension of the internet; and period review of internet suspension.

In relation to the internet shutdown, the court passed the following directions -

1. 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 utilised for a temporary duration only.
2. Any order suspending internet issued under the suspension rules must adhere to the principle of proportionality and must not extend beyond the necessary duration.
3. Any order suspending the internet under the suspension rules is subject to judicial review.

Case Details

Anuradha Bhasin v. Union of India & Ors. | MA 208 of 2021 in Writ Petition (Civil) No. 1031 of 2019