Despite detailed guidelines laid down by the Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, State governments have continued to illegally impose internet shutdowns. Internet shutdowns are imposed without publishing internet suspension orders; under Section 144 of the Criminal Procedure Code (“CrPC”) and/or not constituting the Review Committee to review the legality of internet suspensions under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Suspension Rules, 2017”). Based on RTI queries and responses, Foundation for Media Professionals (“FMP”), one of the original petitioners in Anuradha Bhasin v. Union of India filed a miscellaneous application seeking compliance with the Anuradha Bhasin guidelines. The Supreme Court of India was pleased to issue notice and has admitted the matter for hearing.
Why should you care
In 2022, India had the highest number of internet shutdowns (84 times) in the world for the fifth year in a row. Internet shutdowns are detrimental to citizens’ fundamental rights, as held by the Supreme Court of India in Anuradha Bhasin vs. Union of India, 2020, where it recognised that under Article 19 of the Indian Constitution, citizens have the right to freedom of expression and to carry on one’s occupation via the medium of the internet. These shutdowns also affect the economic and daily lives of citizens.
The Supreme Court of India, in Anuradha Bhasin v. Union of India, held that the right to free speech and the freedom to carry out one’s trade or profession via the medium of the internet is a fundamental right. The Supreme Court has issued detailed directions, (commonly referred to as Anuradha Bhasin guidelines), for issuing internet suspension orders, which must adhere to constitutional limitations when restricting fundamental rights.
These directions include:
- Internet suspension orders must be published to enable legal challenge before courts;
- Internet suspension orders are not issued under Section 144 of the Cr.P.C. because the position has changed since the notification of the Telecom Suspension Rules 2017;
- Internet suspension orders must adhere to the principle of proportionality and must not extend beyond the necessary duration; and
- A review committee must review the internet suspension order within 5 days of its issuance, with a periodic review within every 7 days thereafter.
Despite these guidelines, States continue to illegally suspend telecom and internet services - by not publishing internet suspension orders; issuing orders under Section 144 of the Cr.P.C.; not constituting the review committee and not reviewing the legality of internet suspension orders.
FMP, being one of the original petitioners in Anuradha Bhasin v. Union of India, followed up the implementation of the Anuradha Bhasin guidelines through publicly available RTI requests and responses from State Governments. Based on this, FMP filed a miscellaneous application seeking compliance with Anuradha Bhasin guidelines.
Proceeding before the Supreme Court
The matter was last listed on September 9, 2022, before a 2-judge bench of the Supreme Court comprising Justice B. R. Gavi and Justice Ravikumar. This was the first time the matter has been listed. The 2-judge bench noted that since the original judgement in Anuradha Bhasin v. Union of India was issued by a 3-judge bench, a 2-judge bench could not hear an application for its compliance, and directed the registry to place “before Hon’ble the Chief Justice of India for seeking appropriate orders for placing it before 3-Judges’ Bench”.
Subsequently, FMP’s Miscellaneous Application was listed on May 11, 2023, before the Supreme Court of India before a bench led by Justice B. R. Gavai. After hearing Sr. Advocate Nakul Dewan, the Supreme Court was pleased to issue notice in the matter.
We are 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.
We will continue to fight against illegal internet shutdowns across India, and are grateful to the Foundation of Media Professionals for the support in doing so.
- Order dated 09.09.2022