tl;dr
The First Appellate Authority (“FAA”) in J&K’s Home Department has directed the Public Information Officer (“PIO”) to provide copies of the Review Committee’s findings on internet shutdown orders. The Appellate Authority allowed the PIO not to disclose information contained therein that might attract specific exemptions of the Right to Information Act, 2005, but only by disclosing what these specific provisions are. This order was issued in a hearing dated August 16, 2023, pursuant to a First Appeal that IFF had filed on July 29, 2023, specifically challenging the denial of the Review Committee’s orders in an RTI.
Why should you care?
Internet shutdowns have been recognised by the Supreme Court in Anuradha Bhasin v. Union of India to negatively impact the fundamental rights of Indians, but the Review Committee is the only oversight mechanism available under the law. Understanding its decisions and decision-making is crucial to advancing transparency in what is otherwise a highly opaque system.
Background
Internet shutdowns are legally permissible in India, but they must follow procedures and safeguards set down in law, including the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Suspension Rules”), and also the Supreme Court’s guidelines in Anuradha Bhasin. For instance, in the event an internet shutdown is imposed, a Review Committee must be constituted under Rule 2(5) of the Telecom Suspension Rules. This Review Committee must review all internet suspension orders within 5 days of their issuance and record its findings on the legality of such orders. This is not, by any means, sufficient oversight over the Internet shutdown process (for example, the Committee consists only of members from the Executive branch of the Government, and is not explicitly empowered to overturn an illegal Internet shutdown order), but it is nevertheless, the only oversight mechanism that has been provided under law to internet shutdowns.
To make matters worse, no Review Committee across the country publishes its orders or findings publicly, and this information is also not often provided in RTI applications. Now, the First Appellate Authority in the Home Department of Jammu & Kashmir has directed the PIO to provide copies of the Review Committee’s findings (free of cost!) to us. The PIO has been allowed to remove any information contained in such documents that may attract specific exemptions under the RTI Act, but only after clearly indicating which specific provisions of the RTI Act are being attracted.
The First Appellate Authority also noted that the Supreme Court had made no directions in Anuradha Bhasin allowing PIOs to deny the Review Committee’s orders.
We file RTIs to track State-wise compliance with Anuradha Bhasin judgement
State Governments have continued to suspend the internet without complying with the Telecom Suspension Rules or the Supreme Court’s directions. Therefore, on June 22, 2023, as a part of our ongoing efforts to ensure compliance with Anuradha Bhasin guidelines, we filed an RTI application with the Department of Home of the Government of Jammu & Kashmir seeking information pertaining to instances of internet shutdowns in the Union Territory of J&K since January 10, 2020 (date of judgement in Anuradha Bhasin case).
In the RTI application to the Home Department of J&K, we requested information on, among other aspects, the number of suspension orders issued in the UT since January 10, 2020, whether a Review Committee had been constituted, and the findings of the Review Committee.
In its response, the PIO disclosed information relating to all other questions, but refused to provide the findings of the Review Committee, claiming that the information is exempted under the Section 8 of the RTI Act, 2005.
Aggrieved by this response, we filed a First Appeal, contending that the reply submitted by the PIO was (a) devoid of reasons and suffered from non-application of mind; and (b) the orders of the Review Committee are not exempt under Section 8 of the RTI Act.
Thereafter, we received a notice from the First Appellate Authority requiring us to appear for a hearing on August 16, 2023.
First Appellate Hearing
During the hearing, Advocate Gayatri Malhotra from IFF argued, on behalf of the Applicant, that the reply filed by the PIO was invalid and must be set aside as it was not in compliance with the directions in Anuradha Bhasin as per which orders passed by the Review Committee must be made available for an effective challenge before constitutional courts.
We further submitted that the response was devoid of reasons and suffers from non-application of mind as it merely states that information is exempted under Section 8 of the RTI Act without providing reasons to substantiate the same. We argued that in Ashlesh Biradar v. State of West Bengal, the Calcutta High Court had been pleased to direct the State Government to tender to us the findings of the Review Committee.
In counter, the PIO claimed that the Review Committee orders could not be shared as they had a direct bearing on internal security and were sensitive in nature. Further, the PIO contended that the deliberations of the Review Committee form a single comprehensive document(s), and the information sought could not be reasonably separated from the portion of the document(s) claimed for exemption.
Order of First Appellate Authority
In its order dated August 17, 2023, the FAA noted that access to information under Section 3 of the RTI Act is the rule and exemptions are the exception. It observed that the information can only be denied if it is exempt as per the provisions of Section 8 or Section 9 of the RTI Act. Further, the FAA stated that in case of denial of the information sought, the PIO is required to furnish satisfactory reasons for the same, without which the information can not be denied.
The FAA held that the Applicant was rightly aggrieved by the denial of the Review Committee’s orders. Accordingly, the FAA directed the PIO to provide the Review Committee’s findings within 7 days, without any information that can be denied as per specific exemptions under RTI Act. The FAA further directed the PIO to make reference to particular provisions and provide reasons for claiming exemptions under the RTI Act, 2005, in case of denial of any information.
We thank Gayatri for appearing on behalf of the Applicant, and will keep you updated on the responses and findings of the Review Committee furnished by the PIO!
This post has been authored by Litigation Intern Raghu Gagneja, and has been reviewed by Senior Litigation Counsel Tanmay Singh and Associate Litigation Counsel Radhika Roy.
Important Documents
- Order passed by First Appellate Authority dated 17.08.2023 [Link]
- Written submissions filed by IFF before First Appellate Authority dated 16.08.2023 [Link]
- First Appeal filed by IFF dated 29.07.2023 [Link]
- Response to RTI application by Home Department of J&K dated 11.07.2023 [Link]RTI application filed by IFF before Home Department of J&K dated 22.06.2023 [Link]