State Chief Secretaries Advised To Follow 'Anuradha Bhasin' Judgment For Internet Shutdowns : Union Tells Supreme Court

The Supreme Court on December 10 heard a writ petition filed by the Software Freedom Law Center, a registered society, seeking to regulate internet shutdowns.

As per the writ petition, the official data denotes that there has been a total disruption of internet services of 12 shutdowns amounting to more than 71 hours for a large population, ostensibly to prevent cheating in exams, which is not based on any legislative mandate.

"Such orders which call for shutting down internet services for conduct of examinations are impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017...which is the only legislative mandate under which internet shutdown orders can be passed," the writ petition avers.

When the matter came up after a year before a bench of Justices Vikram Nath and PB Varale, Advocate Vrindra Grover appeared for the petitioner. Whereas, Advocate Kanu Agrawal(for Union) sought some time as the Solicitor General of India could not be present.

Grover briefly apprised the Court that the matter pertains to internet shutdown to prevent cheating in exams. She said: "There are multiple ways in which cheating can be prevented. But internet shutdowns are imposed, which means entire economic activity which in digital India is now through the internet."

She added that the Anuradha Bhasin judgment clearly lays down in which areas the Internet could be legally imposed.

Grover also referred to the Telecommunication Act 2023 and Telecommunications (Temporary Suspension of Services) Rules, 2024, which has now superseded the regime of the Indian Telegraph Act, 1885, and added that the statutory mandate read with Bhasin's judgment will be framework under which internet shutdowns can take place.

Aggarwal on the other hand, opposed this plea. He said: "The judgment in Bhasin clearly lays down the parameter, it lays down what the law is. Now orders are passed under a statutory regime. Bhasin itself says that individually the orders have to be challenged before the High Courts...We have issued specific letters to Chief Secretaries that there is a judgment of Anuradha Bhasin which lays down the law. Follow that law. Please ensure that it is not used outside the legislative parameters that have been provided...Petitioner's seeking an advance ruling."

The Court did not pass any order and listed the matter on January 29.

Background

The petitioner seeks appropriate directions for ensuring compliance with the directions passed by the Supreme Court in the Anuradha Bhasin judgment. It also seeks directions for preventing the abuse of authority to impose unjust and disproportionate internet shutdowns by the Respondent Governments (Arunachal Pradesh, Gujarat, Rajasthan, West Bengal, and Union) and their agencies in various States across the country.

For instance, in September 2021, the entire state of Rajasthan, had to bear the brunt of suspension of internet services, when the Rajasthan Eligibility Examination for Teachers (REET) examinations were being conducted.

Lastly, the petitioner seeking formulation of a set of Guidelines to ensure that internet shutdowns are not unjustly imposed in the country. It also prays for setting aside blanket order of the Rjaasthan Government dated September 2, 2017.

The writ petition notes: "That the Respondent Governments and its instrumentalities have been imposing internet shutdowns across different districts in India, on the pretext of imaginary, fanciful or fictitious law and order problems arising out of organization of examinations. The threat perception in all such cases is majorly flawed as district administrations in various states have been suspending internet services for an entire region for administrative reasons such as to prevent cheating in examinations.

On one occasion, internet services were suspended even when high school examinations were being conducted. Such administrative decisions are manifestly arbitrary and wholly disproportionate response, and are impermissible under the Constitution. The judgment of this Hon'ble Court in Anuradha Bhasin has categorically recognized that using the medium of internet for exercise of rights is constitutionally protected, by stating: “We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected."

As for the Union's affidavit, it has been submitted that police and public order are State subjects under the Constitution. Therefore, States are responsible for the prevention, detection and investigation of cries through their law enforcement machinery.

It is said: "In this regard, the concerned State Governments are empowered to issue orders for temporary suspension of internet services in the State or part thereof under the provisions contained in the Temporary Suspension of Telecom Services Rules, 2017. Furthermore, the States are responsible entities and with due application of mind and in public interest, they would be exercising the power to suspend telecom services."

Case Details: SOFTWARE FREEDOM LAW CENTER, INDIA v. THE STATE OF ARUNACHAL PRADESH AND ORS., W.P.(C) No. 314/2022

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