Supreme Court refuses to hear Miscellaneous Application seeking compliance with internet shutdown guidelines laid out in the Anuradha Bhasin Judgement

TL;DR

Despite the Supreme Court's directions in the January 2020 judgment of Anuradha Bhasin v. Union of India (“Anuradha Bhasin”), State Governments have continued their enforcement of illegal internet shutdowns. These shutdowns are imposed without publicly issuing suspension orders, at times using Section 144 of the Criminal Procedure Code, and failing to establish the required Review Committee under the Telecom Suspension Rules, 2017. To ensure compliance with these directions, the Foundation for Media Professionals (“FMP”), one of the original Petitioners in Anuradha Bhasin, filed a miscellaneous application before the Supreme Court. Initially, in  May 2023, the Supreme Court was pleased to issue a notice, and in September 2023, the Supreme Court granted the Union of India the liberty to file a response. However, on December 7, 2023, the Supreme Court was not inclined to hear the matter. Consequently, the Miscellaneous Application was dismissed as withdrawn.

Why should you care?

In 2022, for the fifth consecutive year, India maintained its disconcerting status as the global frontrunner for internet shutdowns, recording 84 such incidents. The Supreme Court in Anuradha Bhasin recognised the constitutional impact of internet shutdowns on the right to free speech and expression, as well as practice one’s profession online, and issued detailed guidelines to ensure that internet shutdown orders were not issued indiscriminately. However, their implementation remains woefully inadequate despite the passage of more than three years since the issuance of these guidelines.

Background

In Anuradha Bhasin, the Supreme Court affirmed that the right to free speech and the freedom to engage in trade or profession through the internet are fundamental rights. The Court issued comprehensive guidelines for the issuance of internet suspension orders that must comply with constitutional constraints when curtailing fundamental rights. These directions include:

1. Internet suspension orders must be published to enable a legal remedy before courts;
2. The principle of proportionality must be followed while ordering an internet shutdown;
3. Internet shutdowns must not extend beyond the necessary duration; and
4. The review committee must assess the legality of internet suspension orders within specified timeframes.

Despite these guidelines, states continue to unlawfully suspend telecom and internet services by not publishing suspension orders, issuing orders under Section 144 of the Cr.P.C., failing to constitute review committees, and neglecting to review the legality of internet suspension orders.

Proceedings before the Supreme Court

On May 11, 2023, a 3-Judge Bench of the Supreme Court led by Justice B. R. Gavai, issued notice in FMP’s Miscellaneous Application, seeking compliance with the directions from the Anuradha Bhasin case. Subsequently, on September 21, 2023, the Court observed that the Union Government had not submitted its reply and allowed the government the opportunity to do so.

The Miscellaneous Application was thereafter listed on December 7, 2023, before a Bench of Justice B.R. Gavai, Justice Dipankar Dutta and Justice Aravind Kumar. Assisted by the IFF Legal Team, Senior Advocate, Mr. Nakul Dewan, appeared on behalf of FMP, and narrated the chain of events that had preceded the listing of the matter 

The Bench, however, was not inclined to entertain the Miscellaneous Application on the ground that it entailed reopening the Anuradha Bhasin case. Mr. Dewan reiterated that the sole objective was to ensure compliance with the Court's previous directives and not to reopen or contest the original case. He further emphasised the precedent of similar applications being previously entertained to enforce the Supreme Court’s guidelines to safeguard individuals from prosecution under Section 66A, which was struck down in Shreya Singhal v. Union of India.  Despite these submissions, the Bench remained steadfast in its opinion that the Miscellaneous Application was not maintainable, and it was ultimately dismissed as withdrawn.  

We are collectively disappointed with the outcome as the Miscellaneous Application carried with significant implications, especially given India’s moniker as the “Internet Shutdown Capital of the World”. However, our endeavour is to ensure that such setbacks do not deter us from continuing our fight for digital rights, and against illegal and arbitrary internet shutdowns. We express our gratitude to FMP for their steadfast dedication in combating illegal and arbitrary internet shutdowns, and for their unwavering support and faith in our efforts.

We are also immensely grateful to Sr. Advocate Nakul Dewan for leading us in the matter. He was assisted by Advocate-on-Record Prateek Chaddha, Adv. Rohan Naik and the IFF Legal Team comprising Advocates Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy and Gayatri Malhotra.

Important Documents

1. Previous blogpost titled “The Supreme Court asks Government to file a counter in Foundation of Media Professional’s application for compliance with Anuradha Bhasin” (link)
2. Previous Blogpost titled “Supreme Court of India issues notice in Foundation of Media Professional’s application seeking compliance with Anuradha Bhasin Internet Shutdown Guidelines.” (link)