tl;dr
Responses to Right to Information requests filed with the states of Madhya Pradesh and Meghalaya seeking information about reported 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 result we wrote to all the concerned state governments seeking proactive publication of internet shutdown orders in accordance with the judgement of the Supreme Court in Anuradha Bhasin v. Union of India. However, we did not receive any response from the state governments.
As a next step, we filed Right to Information requests with the states in question wherein we asked them to:
- Provide us with copies of the internet shutdown orders based on which the specific shutdowns took place.
- State whether they had complied with the decision of the Supreme Court in Anuradha Bhasin v. Union of India and if not, the reasons for the failure to comply.
- Provide us with copies of all orders through which internet shutdowns took place in their state in 2020.
Responses received
A. Madhya Pradesh
In their reply dated September 3, 2020, “C” Section of Home Department of the Government of Madhya Pradesh 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 Madhya Pradesh has accordingly exempted “C” Section of the Home Department from disclosures which acts as a deterrent to demanding transparency for internet shutdowns in the state.
B. Meghalaya
In their reply dated September 15, 2020, the Home (Political) Department of the Government of Meghalaya has, in response to our query about compliance with the Anuradha Bhasin decision, stated that the department is not aware of the Hon’ble Supreme Court’s decision in the matter since they did not receive it. This depicts a clear signal failure due to which the state government has not been made aware of the decision.
9 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.
Important Documents
- Copies of RTI applications, replies and appeals (link)
- 6 months after Anuradha Bhasin v. UoI, state governments are still not publishing internet shutdown orders dated July 14, 2020 (link)
- SC's Kashmir communication shutdown judgement is just the beginning of a long uphill campaign dated January 10, 2020 (link)