RTI responses from Andhra Pradesh and Gujarat show compliance failure with the Anuradha Bhasin Internet Shutdown decision

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tl;dr

Responses to Right to Information requests filed with the states of Andhra Pradesh and Gujarat seeking information about internet shutdowns in these states show that there is a failure to comply with the Hon’ble Supreme Court’s decision in the matter of Anuradha Bhasin v Union of India (2020 SCC OnLine SC 25).

Background

Post the Anuradha Bhasin decision, we came across multiple media reports wherein it was reported that internet shutdowns were still being done by states without publishing the legal orders under which these internet shutdowns were imposed.

In that decision, the Supreme Court, while deciding the constitutionality of the internet shutdown imposed in Jammu and Kashmir on August 5, 2019, held that all internet shutdown orders must be proactively published by the government.

“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 …. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism. ”

As a next step, we filed Right to Information requests with all the states wherein we asked them to:

  1. Please provide information with regard to whether an internet shutdown has taken place in your state post January 10, 2020. If yes, please provide a copy of the internet shutdown order.
  2. Please provide information with regard to whether this order was made publicly available in accordance with the decision in the case of Anuradha Bhasin v UOI.  If not, please provide reasons for the failure to comply with the decision of the Hon’ble Supreme Court.
  3. Please provide information with regard to whether an advisory has been issued to all District Magistrates clarifying that internet shutdowns can no longer be imposed under Section 144, Code of Criminal Procedure 1973.

Responses received

A. Andhra Pradesh

In their reply dated October 28, 2020, the Police Department of the Government of Andhra Pradesh stated that “it is not correct to say as per the Judgment that the internet shutdowns can no longer be imposed u/s 144 Cr.P.C. …” This is in contradiction to the Anuradha Bhasin decision in which, after making note of the Gujarat High Court decision in Gaurav Sureshbhai Vyas v. State of Gujarat which allowed internet shutdowns to be imposed under S.144, Cr.P.C., the Supreme Court stated that the position of law has changed after notification of the Telecom Suspension Rules in 2017. This could be reasonably construed as an implicit finding that telecom suspension orders can no longer be issued under S.144, Cr.P.C.

B. Gujarat

In their reply dated October 14, 2020, the Home Department of the Government of Gujarat stated that the internet shutdown related information that we asked for relates to their department and that they were exempted from disclosure under the RTI Act u/s 24. Section 24 of the RTI Act states that “certain organisations” such as intelligence and security organisations do not come under the purview of the act and can be exempted from disclosure if the government specifically exempts them by notification in the Official Gazette. The Government of Gujarat has accordingly exempted Special Branches of the Home Department from disclosures which acts as a deterrent to demanding transparency for internet shutdowns in the state.

11 months on, still no compliance with the Anuradha Bhasin decision

These responses make it clear that states and the Centre have failed to comply with the Anuradha Bhasin decision due to various reasons, whether it is wilful disobedience or due to signal failure. As we have stated previously, publication of internet shutdown orders and proper record-keeping is essential for two reasons. First, without access to internet shutdown orders, citizens cannot exercise their fundamental right to seek judicial review of arbitrary or disproportionate restrictions on internet access. Second, internet shutdowns cause huge economic losses and maintaining a consolidated record of all internet shutdowns imposed at the state and central level is necessary for evidence based policy reform.

Without official publication of orders, the only source of information about internet shutdowns in different parts of the country is media reports. However, the figures derived based on media reports do not represent the full scale of the problem and may fail to include shutdowns which are shorter in duration or localized in small towns and villages.

In any case, even the limited information which is available through media reports suggests that internet shutdowns are being ordered by government officials who are not authorized under the law. For instance,  media reports indicate that internet shutdowns in Madhya Pradesh, Uttar Pradesh and West Bengal were ordered by District Magistrates who are not empowered to exercise powers under the Telecom Suspension Rules 2017. Prior to 2017, internet shutdowns were ordered by District Magistrates under Section 144, Code of Criminal Procedure 1973. However, in Anuradha Bhasin v. Union of India, the Supreme Court has clarified that the position of law has changed after notification of the Rules in 2017 and the procedure prescribed under the Rules must be followed prior to imposing internet shutdowns.

What are we doing?

In light of these recent RTI responses as well as due to responses received previously from Madhya Pradesh and Meghalaya, IFF has been strategising the foremost way of intervening. We will soon be taking steps to ensure that the Hon’ble Supreme Court’s decision in Anuradha Bhasin v Union of India is complied with.

Important documents

  1. RTI requests filed with all states on September 24, 2020 (link)
  2. RTI response from the Government of Andhra Pradesh dated October 28, 2020 (link)
  3. RTI response from the Government of Gujarat dated October 14, 2020 (link)
  4. 6 months after Anuradha Bhasin v. UoI, state governments are still not publishing internet shutdown orders dated July 14, 2020 (link)
  5. RTI responses from MP and Meghalaya show compliance failure with the Anuradha Bhasin Internet Shutdown decision (link)
  6. SC's Kashmir communication shutdown judgement is just the beginning of a long uphill campaign dated January 10, 2020 (link)

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