tl;dr
Since August 15, 2021, internet services have been suspended in four districts of Meghalaya due to ongoing civil unrest. Thus, we wrote to the Meghalaya government to publish all orders related to the current internet shutdowns in the state and proactively publish any subsequent internet shutdown orders in compliance with the Supreme Court of India’s judgment Anuradha Bhasin v. Union of India (2019).
Background
In recent years, there has been a visible discordance between the constitutional principle of freedom of speech and expression guaranteed by Article 19(1) of the Indian Constitution and the recurrent incidence of internet shutdowns across different parts of the country. According to a report by Access Now, India recorded the highest number of internet shutdowns globally, with 109 internet shutdowns in 2020 alone. The number of internet shutdowns in India continuesto soar, with as many as 30 shutdowns within the first half of 2021.
In today’s digital world, where we are intrinsically dependent on the internet for our everyday functionality, the loss of connectivity gravely impairs several of our fundamental rights, including the right to education, the right to information and the right to healthcare. Additionally, internet shutdowns are known to cause mammoth economic losses. In 2020, the economic loss due to internet shutdowns was estimated at a whopping $2.8 billion. This is ironic, since in 2019, in its landmark judgment in Anuradha Bhasin and Anr. v. Union of India and Ors. ((2020) 3 SCC 637), the Supreme Court of India had recognised that the exercise of fundamental rights through the internet was protected by the Constitution. As such, the Court determined that any restriction on internet access must have a publicly disclosed legal basis and it should be temporally and territorially limited in scope to satisfy the principles of legality, necessity and proportionality.
This is of vital importance since this judgment filled substantial gaps that existed in the prevalent legislations governing internet suspensions, vis-a-vis the Indian Telegraph Act, 1885, S.144 of the Code of Criminal Procedure, 1973 and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Importantly, the Court accorded the much needed emphasis to the need to make orders ordaining suspension of internet services publicly available and widely accessible.
Even after two years, there is little compliance to the Supreme Court’s judgment
Although the Anuradha Bhasin judgment was passed almost two years ago, we are continually confronted with instances of non-compliance to its directions across the country. As recently as May 2021, internet was suspended in three districts in Jammu and Kashmir, but the corresponding orders of internet suspension were published belatedly in June 2021, contrary to the directions of the Anuradha Bhasin judgment to publish the suspension orders within 24 hours of its issuance.
In September 2020, we had filed RTI requests with several state governments to assess their compliance with the Anuradha Bhasin judgment and the responses revealed glaring deficiencies in the states’ compliance to the Anuradha Bhasin. One of the states to respond to our RTI request was Meghalaya which stated that the State Home Department was not even aware of the decision of the Supreme Court. Interestingly, almost a year later while executing internet shutdown orders in its state, the Meghalaya Home Department persisted in its non-compliance to the directions of the Supreme Court in Anuradha Bhasin.
What is happening in Meghalaya?
Otherwise known for its breathtaking beauty and music, the state of Meghalaya over the past three days has been reeling under violence and unrest. If you’re wondering why you haven't heard about it, the reason is simple; all internet and mobile services in the state have been suspended but without any public order of suspension. This is compounded by a larger disinterest of the mainstream media to capture the events in the northeastern states.
On August 15, 2021, Cherishterfield Thangkhiew, a former militant of the banned Hynniewtrep National Liberation Council (HNLC) was killed in a police encounter which led to large scale violence breaking out across the state of Meghalaya. In order to curb any further deterioration of law and order in the state, the government imposed a state-wide curfew for 72 hours. Simultaneously, in the districts of East Khasi Hills, West Khasi Hills, South West Khasi Hills and Ri-Bhoi of Meghalaya, internet and mobile services were suspended initially for 48 hours and the suspension extended for another 24 hours subsequently. Instances of internet shutdowns in Meghalaya have been on the rise with the state being put under more than 600 hours of internet suspensions since 2018.
What is all the more striking is that even after 72 hours of the imposition of the internet shutdown, no administrative order declaring the shutdown could be found on any official government websites or information portals. Updates regarding the internet shutdowns have been mostly gleaned through media reports which on several occasions provide varied information and fail to accurately represent the scale and scope of the orders. This is a blatant disregard of the Anuradha Bhasin judgment whereby the Supreme Court had held,
“It must be noted that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available...” (para 96)
We wrote to the Home Department of Meghalaya insisting on compliance with the Anuradha Bhasin judgment
In our representation, we highlighted that the non-availability of the orders of suspension of internet services curbs the citizens’ fundamental right to seek judicial remedies against arbitrary or disproportionate restrictions on internet access. Further, maintaining a consolidated record of all internet shutdowns imposed at the state and central level is necessary to facilitate evidence-based policy reform.
We also emphasised that in the current internet shutdown, the non-compliance was not limited to the state’s failure to proactively publish suspension orders. The state had also failed to comply with Rule 2(5) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which makes it necessary for the states to constitute a Review Committee to assess whether the orders of suspension of telecom services were within the narrowly defined procedural safeguards of the law and not excessive. This is especially worrying since, in the absence of a Review Committee, the likelihood of the internet suspension being extended disproportionately without due accountability remains rather high.
Accordingly, we urged the government of Meghalaya to undertake the following steps to ensure compliance with the Anuradha Bhasin judgment on an urgent basis:
- Proactively publish all internet shutdown orders for your State on your official government website and widely disseminate this information through the media.
- Issue an advisory to all District Magistrates in your State clarifying that internet shutdowns can no longer be imposed under Section 144, Code of Criminal Procedure 1973 as per the judgement in Anuradha Bhasin.
- Ensure the appointment of a Review Committee at the earliest and facilitate the mandatory review of the current suspension order as well as any extension orders, if any, within the narrowly defined safeguards as established by the Hon’ble Supreme Court of India.
We are hopeful that our suggestions would be taken into consideration by the Meghalaya government. IFF will continue to strive towards greater compliance with the directions of the Supreme Court of India and advocate towards realising the principles enshrined in the Anuradha Bhasin judgment into practice.