Citing Anuradha Bhasin Case Precedents
In a significant development, the Supreme Court of India has dismissed an application seeking the enforcement of guidelines on internet shutdowns, clarifying that an earlier notice issued in this matter was an inadvertent error. This decision is a continuation of the discourse initiated in the landmark Anuradha Bhasin case, where the Court had previously established critical directives against indefinite internet suspension and the necessity for the publication of shutdown orders.
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The application in question, filed by the Foundation for Media Professionals, was an extension of their previous involvement in the Anuradha Bhasin case. The foundation’s plea focused on three pivotal aspects: the requirement for authorities to proactively publish all orders restricting telecommunication services, including the Internet; the need for information regarding internet shutdown orders to be accessible through Right to Information (RTI) requests; and a clarification that the authority for restricting access to telecommunication services should be based on the Temporary Telecom Suspension (Public Emergency or Public Safety) Rules, 2017, rather than under Section 144 of the Code of Criminal Procedure, 1973.
Despite the Supreme Court’s clear directives issued in January 2020, the foundation argued that several state governments have continued to impose internet shutdowns without proactively publishing the legal orders authorizing these suspensions. They cited instances in states like Arunachal Pradesh, Madhya Pradesh, Manipur, Meghalaya, Rajasthan, Uttar Pradesh, and West Bengal, raising concerns about the transparency and legality of such actions.
Furthermore, the foundation highlighted the refusal of state governments to provide information in response to RTI requests filed by civil society organizations. These RTIs, sent to the governments of Madhya Pradesh, Meghalaya, West Bengal, and Uttar Pradesh, sought specific details regarding compliance with the Anuradha Bhasin judgment.
During the hearing, Senior Advocate Nakul Dewan, representing the applicant, voiced concerns over the arbitrary nature of internet shutdowns by state governments. He said,
“It depends upon the situation prevailing in those states,”
to which Justice BR Gavai responded. Dewan acknowledged the states’ prerogative in such matters but pointed out the difficulties arising from non-compliance with the Court’s directives.
Justice Aravind Kumar questioned the maintainability of the application in a matter that had already been disposed of, suggesting that a review might be more appropriate. He stated,
“You may have many difficulties, Mr Dewan, but how is your application maintainable in the first place in a disposed of matter where we have virtually become functus officio?”
Justice Gavai added,
“Merely because we have committed an error by issuing notice…”
and further remarked,
“We frown upon this practice of reopening disposed of matters by filing civil applications. In two matters, we have imposed a cost of Rs 10 lakhs each.”
Dewan attempted to differentiate between private matters and public interest litigation, but the bench ultimately allowed the Foundation for Media Professionals to withdraw its application.
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The original petition, filed by Anuradha Bhasin, executive editor of Kashmir Times, and Rajya Sabha MP Ghulam Nabi Azad, challenged the internet curbs and other restrictions in Kashmir following the abrogation of the state’s special status in August 2019. A bench headed by Justice NV Ramana had declared that the freedom of speech and expression and the freedom of trade and commerce through the internet are constitutionally protected rights under Articles 19(1)(a) and Articles 19(1)(g), respectively. The Court had observed,
“Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution (para 26).”
This judgment also covered other issues, such as the determination of prerequisites for internet shutdown, the impermissibility of indefinite suspension of the internet, and periodic review of internet suspension. The Court had directed that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, and that any such order must adhere to the principle of proportionality and be subject to judicial review.
This recent dismissal by the Supreme Court marks a crucial moment in the ongoing dialogue about internet freedom and governmental accountability in India, underscoring the delicate balance between national security and the preservation of fundamental rights.
