The Supreme Court's judgement in Anuradha Bhasin v. Union of India is a step in the right direction but fails to provide immediate relief to Kashmiris who have already suffered immense hardship due to the 158 day communication shutdown. However, the judgement does provide strong legal footing to challenge the continued communication shutdown in Kashmir and arbitrary use of the Telecom Suspension Rules all over India. Most importantly, the judgement is only the first step and it will require continuous monitoring and follow up action to ensure the government complies with the progressive principles and procedural safeguards laid down by the Supreme Court.
- Endorsement of the proportionality standard
Drawing on past domestic and foreign jurisprudence, the Court has endorsed the proportionality standard to be the appropriate standard of review for communication shutdown orders. The judgement summarizes the proportionality test to require pursuit of a legitimate aim, exploration of suitable alternatives and adoption of the least restrictive measure. The nature of the restriction and its territorial and temporal scope will be relevant factors to determine whether it is proportionate to the aim sought to be achieved.
- Reading procedural safeguards into the Telecom Suspension Rules
The Court has read three procedural safeguards into the Telecom Suspension Rules to bring greater transparency and accountability in the telecom shutdown process. First, all telecom suspension orders must be made publicly available to make the Rules compliant with principles of natural justice. Second, orders must specify a time limit and they cannot suspend internet services indefinitely. Third, the Review Committee constituted under the Rules must review the orders every seven working days to determine their necessity. The Court has noted that the Telecom Suspension Rules have certain gaps but instead of striking them down as unconstitutional, the Court has read these procedural safeguards into the Rules to prevent arbitrary use of the Rules.
- Internet is a medium to exercise fundamental rights but not a fundamental right itself
The judgement states that expressing one’s views or conducting one’s business through the internet are protected under Articles 19(1)(a) and 19(1)(g) of the Constitution respectively. This means that online speech or online business activities can be restricted only on grounds recognized under Articles 19(2) and 19(6). This is relevant because the grounds under Article 19(6) are broader than Article 19(2) and includes reasonable restrictions imposed in “public interest.” Therefore, online speech will enjoy greater protection than online business activities.
- War on terror is not an excuse to ride roughshod over free speech
The Court has recognized that even when the state is fighting the threat of terrorism, it can prohibit speech only if it is likely to lead to imminent violence.
- Government cannot refuse to supply orders citing logistical inconvenience
The Court has held that the government must make all orders issued under S.144, Cr.P.C. and Telecom Suspension Rules available to petitioners. However, the government may refuse disclosure of orders if there is a “specific ground of privilege” or “countervailing public interest.” In these circumstances, the Court will have to determine whether the reasons cited by the government outweigh the petitioner’s right to receive copies of orders restricting fundamental rights. In the context of Kashmir, the Court has specifically held that the government’s claim that it was too difficult to produce multiple orders being issued and withdrawn on a day to day basis is not a valid reason to refuse disclosure of orders.
- Government cannot cite lack of technical ability as an excuse
The judgement categorically rejects the State’s claim that it needs to shut down the internet in its entirety because it does not have technical means to block access to specific websites and applications.
- Source of power to impose telecom suspensions has changed after 2017
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 has 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.
- No direction for restoration of communication services in Kashmir
The Court has not declared the 158 day communication shutdown as unconstitutional or directed the government to restore all telecom services in Kashmir. As on date, internet services and voice calls on prepaid numbers continue to remain suspended in Kashmir. The judgement states that it could not determine the constitutionality of the communication shutdown because the State had not produced all orders. The State's refusal to produce orders citing logistical inference was clearly held to be untenable but despite this, the Court has allowed the State to get away with frustrating the fundamental right to judicial review by unjustifiably witholding orders.
- Only prospective review by the executive, no retrospective review by the judiciary
The Court has laid down abstract guiding principles and left it to the executive to decide the necessity and proportionality of continuing the communication shutdown and movement restrictions in Kashmir. This means that there will be no determination of the constitutionality of the communication shutdown and movement restrictions from 5 August 2019 to 10 January 2020 by the judiciary. Even the executive is only required to prospectively review its imposition of restrictions on telecom services, and there is no obligation on the executive to review its actions between 5 August 2019 to 10 January 2020. The Court’s refusal to retrospectively review the 158 day long communication shutdown has left Kashmiris who have already suffered psychological distress and financial losses running into thousands of crores without any relief or remedy.
- Reasonable restriction can also mean complete prohibition
The Court has held that reasonable restrictions under Article 19(2) can extend to complete prohibition of speech in certain circumstances. This counterintuitive holding sets a problematic precedent and it could undermine future legal challenges to the Telecom Suspension Rules on the ground of internet shutdowns being inherently indiscriminate and overbroad in nature.
- Misapplication of the doctrine of chilling effect
In this case, there was direct interference with journalistic activities because journalists belonging to Kashmir Times could not contact their sources and editors and their movement was being arbitrarily blocked by paramilitary forces. All these specific facts were pleaded by the petitioner in her writ petition and additional affidavit. Despite these facts being on record, the Court has mischaracterized this type of direct impingement on press freedom as a complaint of indirect chilling effect on the press’s functioning. The direct and inevitable consequence of disabling telecom services and physically stopping journalists from entering certain areas is violation of press freedom and it cannot be characterized solely as a chilling effect.
The judgement in Anuradha Bhasin v. Union of India provides a sound legal basis to challenge future communication shutdowns but it does little to address the harm already caused to Kashmiris in the last 158 days. The Court has rejected several extreme arguments made by the government regarding secrecy of orders and national security, and the principles and safeguards laid down in this case are the first step in reforming the telecom suspension process in India. This judgement is a call to action in a lot of ways and it marks the beginning of a long uphill campaign. There needs to be disciplined and strategic follow up action to ensure it is implemented by the government in its true spirit in Kashmir and other states.
To this end, IFF will be taking the following steps in the coming weeks:
- Write to the government urging it to review the functioning of the Telecom Suspension Rules and conduct a public consultation since the Supreme Court has also noted that the Rules have gaps and need amendment.
- File regular RTIs to check if telecom suspension orders are being proactively published and periodically reviewed in accordance with the Supreme Court's directions.
- Work with local petitioners if the government fails to review the orders for Kashmir within one week and support them in moving to courts to seek compliance with the Supreme Court's directions.
- Copy of SC judgement in Anuradha Bhasin v. UoI (link)