Foundation for Media Professionals writes to J&K Govt seeking compliance with Anuradha Bhasin

Tl;dr

In May 2021, the Government of Jammu & Kashmir imposed internet suspension on three separate occasions. The Government imposed these restrictions without complying with the decision of the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, which requires that any such restrictions must have a publicly disclosed legal basis. Foundation of Media Professionals has addressed a legal notice dated June 23rd to the Government of Jammu & Kashmir asking them to comply with the Anuradha Bhasin judgement. IFF provided legal assistance to FMP.

Background

On August 5th, 2019, the Union Government imposed a complete communication shutdown in Jammu & Kashmir in the immediate aftermath of abrogation of Article 370 of the Constitution. All communication channels, including landlines, voice calls, SMS services, fixed-line internet and mobile internet services, were suspended in this period. The communication shutdown was challenged by Ms Anuradha Bhasin, the Executive Editor of Kashmir Times, before the Supreme Court. The Foundation of Media Professionals (FMP) intervened in the case to support Ms Bhasin’s challenge.

On January 10th, 2020, the Supreme Court delivered its judgment which was reported as Anuradha Bhasin v. Union of India, (2020) 3 SCC 637. The decision recognised the fundamental nature of the right to access the internet and passed detailed directions regarding the safeguards the Government must follow when it exercises power to suspend the internet. Most pertinently, the Hon’ble Supreme Court of India in Anuradha Bhasin clarified that any restriction on the internet must have a publicly disclosed legal basis.  

Subsequently, the Right to Information requests showed that State Governments continued to not comply with the directions of the Hon’ble Supreme Court in Anuradha Bhasin.

The Government of J&K imposed internet suspension in May, 2021 without complying with Anuradha Bhasin

In May 2021, the Government of J&K imposed internet suspension on three separate occasions.

  1. On 4th May 2021 internet services were suspended in Sopore, Baramulla District.
  2. On 6th May 2021 internet services were suspended in Shopian District.
  3. On 17th May 2021, internet services were suspended in Pulwama District.

The Union and the State Governments are empowered to restrict internet services under Section 5(2) of the Indian Telegraph Act, 1885. However, the Government can impose restrictions only on the “occurrence of any public emergency”, or in “the interest of public safety” if it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence [Supreme Court has interpreted this provision in People’s Union of Civil Liberties vs Union of India, (1997) 1 SCC 301].

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension Rules) provides the procedure to suspend internet services. Rule 2(1) empowers the Secretary to the Government of India in the Ministry of Home Affairs or Secretary to the State Government in charge of the Home Department to suspend internet services. In unavoidable circumstances, such orders may be issued by a duly authorised officer not below the rank of Joint Secretary to the Government of India. These orders have to be confirmed by the competent authority within 24 hours of the issuance of such orders. After that, a Review Committee has to meet within 5 working days of the order suspending internet services to record whether the order complied with Section 5(2) of the Indian Telegraph Act, 1885.

The suspension of internet services in Jammu & Kashmir on the three occasions mentioned above was ordered by the Inspector General of Police (IGP), Kashmir Zone. In disregard of the directions in Anuradha Bhasin, the Government of J&K has not published the orders of IGP and the Review Committee. Moreover, orders of the Principal Secretary of the Government of J&K confirming the orders of IGP were only belatedly published sometime in June 2021.

FMP has made sustained efforts to ensure that restrictions on internet services in J&K comply with the law. FMP has bravely and tirelessly participated in several rounds of litigation before the Supreme Court to ensure that the people of J&K can access telemedicine, online education, remote work facilities and virtual courts. FMP has now addressed a legal notice dated June 23rd, 2021, to the Government of J&K.

In the legal notice, FMP has pointed out that the Government of J&K has not published orders of the IGP and the Review Committee. FMP has also pointed out that the belated publication of orders of the Principal Secretary confirming the orders of the IGP is not in compliance with the directions of the Hon’ble Supreme Court in Anuradha Bhasin and constitutes contempt of court. Such belated publication hinders the ability of affected persons to challenge the order before the High Court or appropriate forum and violates the fundamental rights of the residents in the affected areas.

FMP has called upon the Government of J&K to undertake the following measures:

  1. Undertake to immediately publish any subsequent order restricting internet access under the Telecom Suspension Rules, in compliance with the decision of the Hon’ble Supreme Court in Anuradha Bhasin. These orders must be published on official government websites and also made available on print and electronic media.
  2. Proactively publish orders issued in May 2021 by the Review Committee as well as the Authorised Officer under the Telecom Suspension Rules. These orders must be published on official government websites and also made available on print and electronic media.

IFF provided legal assistance to FMP in the drafting of the notice dated June 23rd, 2021. We hope the Government of J&K seriously considers the recommendations of FMP to ensure the extraordinary power of suspending internet services for the entire population of an area is exercised lawfully and transparently. We also commend the continued efforts of FMP to defend the rights of residents of J&K.

Important Documents

  1. FMP’s legal notice dated June 23rd, 2021 (link)
  2. The decision of the Hon’ble Supreme Court in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637 (link)
  3. Previous post titled 'SC's Kashmir communication shutdown judgment is just the beginning of a long uphill campaign' dated January 10th, 2020 (link)
  4. Previous post discussing the non-compliance of Anuradha Bhasin by Governments  Madhya Pradesh and Meghalaya dated September 28th, 2020 (link)
  5. Previous post titled 'RTI responses from Andhra Pradesh and Gujarat show compliance failure with the Anuradha Bhasin Internet Shutdown decision' dated November 10th, 2020 (link)