Ahead of its visit to J&K, IFF apprised the Parliamentary Standing Committee on IT of repeated internet shutdowns

Tl;dr

We addressed a letter to the Parliamentary Standing Committee on Information Technology, travelling to Jammu & Kashmir (J&K). The letter highlighted that the government was repeatedly shutting down the internet in J&K without complying with the Supreme Court’s directions in Anuradha Bhasin vs Union of India. In that case, the Supreme Court, amongst other things, held that the Government must publish any order restricting internet access to facilitate judicial review. However, as we informed the Committee, there have been several shutdowns in J&K without publication of such orders. We have asked the Committee to raise this issue with the Government. Incidentally and unfortunately, as the Committee visited J&K, the government ordered widespread suspension of internet services.

Background

Late in the evening on September 1, 2021, we received news that the Parliamentary Standing Committee on Information Technology (the IT Committee) is travelling to Jammu & Kashmir (J&K) on September 2, 2021. Having monitored the repeated incidents of internet shutdowns in J&K over the last few years, we worked to ensure that the IT Committee is briefed on these shutdowns, where the guidelines of the Supreme Court are not followed.

In Anuradha Bhasin vs Union of India, (2020) 3 SCC 637, the Hon’ble Supreme Court, in the judgment dated 10.01.2020, laid down the following directions  pursuant to which the Government may order an internet suspension ; within the constitutional framework which centres around the fundamental rights of Indians:

1. Access to information via the internet is a fundamental right under the Indian Constitution, and any restriction on internet access must be temporary, limited in scope, lawful, necessary and proportionate. (Paras 100, 160.2, 160.4 & 160.5)
2. Any restriction on internet services must also be under the Telecom Suspension Rules, 2017 and not Section 144, Code of Criminal Procedure, 1973 (Paras 86 to 92)
3. The Government must publish any order under Telecom Suspension Rules, 2017, restricting internet access to facilitate judicial review (Paras 96, 104 & 160.1)
4. The review committee under the Telecom Suspension Rules, 2017 must review internet suspension orders under the proportionality standard within five working days of their issuance and conduct a periodic review within seven days thereafter. (Para 160.3)

We provided legal assistance to the Foundation for Media Professionals in its intervention before the Supreme Court of India in Anuradha Bhasin, which culminated in the above directions. We have also been involved in several matters relating to internet suspensions in J&K, including Foundation for Media Professional vs Union of India, WP(C) Diary  No. 10817 of 2020, which sought restoration of 4G services in UT of J&K during the Covid-19 pandemic.

We highlighted repeated instances of non-compliance

In an unfortunate coincidence, the IT Committee’s visit to J&K saw a widespread suspension of internet services. In our timely letter to the IT Committee dated September 2, 2021, we summarised the Anuradha Bhasin directions as above. We highlighted that the Government for the UT of J&K has, on several occasions, ordered the suspension of internet services without following the directions mentioned above. Most importantly, the suspension order is not made available on the website of the Government for the UT of J&K. This is a grave restriction of the fundamental rights of the residents of J&K.

According to news reports, in July & August as well, the Government suspended the internet services on five separate occasions:

1. In Sopore, Baramulla District on 24th August 2021 and 23rd July 2021;
2. In Pulwama District on 14 July 2021 and 9th July 2021; and
3. In Shopian District on 19th July 2021

The suspension orders for these instances have still not been uploaded on the Government websites, in blatant disregard of the decision in Anuradha Bhasin. Such willful ignorance also constitutes contempt of court. Even in May 2021, the UT of J&K suspended internet services on three occasions:

1. On 4th May 2021 in Sopore, Baramulla District;
2. On 6th May 2021 in Shopian District; and
3. On 17th May 2021 in Pulwama District.

In these instances, the orders were only published after significant delays, sometime in June 2021. Moreover, to the best of our knowledge, the orders issued by the Review Committee have not been published to date. Delays of this nature are a serious threat to the exercise of the fundamental rights of the residents of J&K. How can someone be expected to challenge a suspension order in a constitutional courtif they do not even have access to the order itself? Such a practice also seriously undermines the directions of the Supreme Court, and the primacy of the rule of law.

India is the shutdown capital of the world

These repeated shutdowns must be viewed seriously because India is the internet shutdown capital of the world. Frequent suspensions are made possible because the government fails to comply with the law, permitting internet service suspension in extremely limited circumstances. The economic, psychological, social, and journalistic harm caused by such suspensions outweighs any speculative benefits as, among other things, residents of the affected areas are unable to seek help, remotely work, continue their education and verify news that they receive.

In fact, in 2020 alone, as per reports, the Indian economy suffered losses to the tune of US $2.8 billion due to 129 instances of internet suspension, which cumulatively went on for 8,927 hours and affected 10.3 million individuals. India accounted for approximately 70% of the world’s internet suspensions - this means that India alone accounts for more than twice the internet suspensions than all of the rest of the world combined!

The issue is not particular to J&K, though the extent of the problem is far more prevalent in J&K than in other states. We have previously highlighted how transparency and compliance remains low in other states, such as Andhra Pradesh, Gujarat, Madhya Pradesh and Meghalaya. The responses of these states to RTIs filed by us showed how specific guidelines laid down in Anuradha Bhasin were not being followed.

We remain determined in our fight against unjustified internet shutdowns, which do not comply with constitutional principles and the guidelines of the Supreme Court, and will continue to demand transparency, accountability and a rights-first approach before the appropriate fora, including the Courts and government agencies.

Important Documents

1. IFF’s letter to the Parliamentary Standing Committee on Information Technology dated September 2, 2021 (link)
2. IFF Statement on long overdue 4G mobile internet restoration in Jammu & Kashmir after 550 days #KeepItOn dated February 6, 2021 (link)
3. IFF Statement on Supreme Court's J&K 4G Decision : An incremental step towards restoration dated May 11, 2020 (link)