A newspaper article dated 30.10.2020 published in Telegraph India titled ‘Arunachal Internet Bar to curb Cheating’ stated that Arunachal Pradesh government will be shutting down internet services on 1st November 2020 in 15 of its districts to ensure that no cheating takes place during state civil service exams.
SFLC.in sent a representation to the Government of Arunachal Pradesh dated 31.10.2020 requesting the state government to reconsider shutting down the internet to prevent cheating in exams.
Suspending Internet services to prevent cheating in exams is a grave violation of The Temporary Suspension Of Telecom Services (Public Emergency Or Public Safety) Rules, 2017 as well the decision of the honorable Supreme Court of India in Anuradha Bhasin V. Union of India.
SFLC.in requested the State authorities to reconsider shutting down the internet to prevent cheating in examinations. Internet shutdowns have a harrowing impact on citizens and are often disproportionate in nature. Internet shutdowns are bound to cause economic loss, an impact on education, healthcare and other welfare schemes. An internet shutdown during a pandemic can be especially grave considering citizens depend on the internet to get information, work and study.
SFLC.in wrote to the Home Secretary, Government of Rajasthan as well the District Collectors of Udaipur, Dungarpur, Pratapgarh and Banswara asking them to publish orders regarding the suspension of Internet services in the said districts.
Internet services have suspended in these 4 districts since Saturday, 26th September 2020 following violent protests.
SFLC.in hasn't been able to access any official order suspending the internet services in these districts following which it wrote to the concerned authorities. It has been held by the Supreme Court of India in Anuradha Bhasin V. Union of India(WRIT PETITION (CIVIL) NO. 1031 OF 2019) that publication of orders issued by the authorities directing suspension of telecom services is mandatory.
The Hon’ble Court has held that “‘It must be noted that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands compliance of the people requires to be notified directly and reliably’"
We hope that concerned authorities provide us with the relevent orders on an urgent basis.
Further, We believe that suspension of internet services during a pandemic can cause widespread harm and can impact education, livelihood, access to healthcare and information among other things. We hope that these districts resume internet services on an urgent basis.
Report from the panel discussion on “Reconciling State’s Interest With a Digital Life”
Software Freedom Law Centre (SFLC.in) in collaboration with Live Law hosted a panel on August 4, 2020 to commemorate a year of communication blockade in the Union Territory of Jammu and Kashmir. The panel on “Reconciling State’s interest with a digital life” was centred on the growing spurt of Internet shutdowns in the paradigm of national security, misinformation, censorship, content takedown and encryption, and further extended to discussing a roadmap for communication freedom in Jammu and Kashmir.
The panel was laced with eminent dignitaries which included Manish Tewari, Member of Parliament and Lawyer, Prof Manoj Jha, Member of Parliament, Dr Gulshan Rai, Former Chief Information Security Officer (Prime Minister’s Office), Ms. Anuradha Bhasin, Executive Editor, Kashmir Times, Mr Faisal Farooqui, Founder of Mouthshut.com, Ms. Sairee Chehal, Founder of Sheroes.
The panel was moderated by Ms. Mishi Choudhary, Founder of SFLC.in.
SFLC.in had written to all the members of the IT committee chaired by Dr. Shashi Tharoor on 8th June 2020 highlighting the menace of Internet shutdowns.
Our letter highligted the adverse impact of Internet shutdowns on citizens of the country. The letter also reinstated the plight of the citizens of Jammu and Kashmir as the region has had more than 365 days of restricted communication.
We have been maintaining an Internet Shutdown tracker which records the number of internet shutdowns that have occured in the country, We have also been trying to record the impact of the block by running an Initiative called Voices from Kashmir.
SFLC.in had earlier written a letter to the special committee formed by the Supreme Court in Foundation of Media Professionals V. Union of India offering our assistance to the committee.
We are hopeful that the IT committee will look into the matter of states imposing arbitary internet shutdowns and come up with recommedations that will help fighting against these net disruptions.
SFLC.in wrote a letter to the special committee formed by the Supreme Court in Foundation of Media Professionals V. Union of India offering our assistance to the committee.
On 11th May 2020, the Supreme Court had ordered that a special committee has to be formed comprising of The Home Secretary to the Government of India, The Communications secretary and the Principal Secretary to the Union Territory of Jammu and Kashmir to look into restoring 4G internet connection in the Union Territory. This committee was to be headed by the Home Secretary.
Jammu and Kashmir had faced unprecedented communication blackout since August 4th, 2019. 2G internet speed was restored in the valley only after 213 days. During this time, the COVID-19 pandemic hit-making it essential for the region to have 4G internet speed.
The order pronounced by a Bench comprising of Justices N.V Ramana, R Subhash Reddy, and B.R Gavai constituted a special committee to look into restoring 4G in the region. The order also asked the special committee to consider restricting internet speed in problematic areas and letting other areas have high-speed internet on a trial basis.
We wrote to the special committee offering our assistance in the matter.
SFLC.in has been maintaining an internet shutdown tracker that records instances of Internet Shutdowns in the Country. The Tracker has reported a total of 187 shutdowns in Jammu and Kashmir since 2012. We have also recorded Voices from the valley which documents the impact of the Internet shutdowns.
On 12th May 2020, without any advance notice to the citizens, Internet services were cut off in some parts of Hoogli district in West Bengal, following communal riots. From the information that was received by SFLC.in, it was found that the internet had been suspended using Section 144 of Criminal Procedure Code, 1973. The legally prescribed manner of imposing an internet shutdown is through the procedure laid down in Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 which were notified in 2017. The situation became even more critical as the suspension of the internet for 6 long days would have had a detrimental impact on the fight against COVID-19.
Taking into account the manner in which the internet shutdown was imposed and the hardships being faced by the citizens due to the same, SFLC.in moved a Petition before the Calcutta High Court yesterday, challenging this order of arbitrarily imposed internet shutdown. The matter got listed for today (15th May 2020) before the Bench comprising of the Hon’ble Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee.
SFLC.in’s Legal Director Prasanth Sugathan appeared before the Hon’ble bench through video conferencing in the matter. It was argued by him that the order issued by the District Magistrate under Section 144 of the CrPC was beyond his jurisdiction as per the provisions of the Telcom Suspension Rules, 2017 which is a special law governing the field. The order was also against the principles and directives laid down by the Hon’ble Supreme Court in Anuradha Bhasin V. Union of India. The Bench asked the Advocate General appearing on behalf of the State to reply to the arguments raised by the Petitioner. Realizing the urgency in the matter, the Hon’ble Bench has convened a special sitting and has listed the matter for tomorrow at 11:00 AM (16.05.2020).
UPDATE (16/05/2020; 7:00 PM)
A special sitting of the division bench took place today at 11AM. In the hearing, a number of contentions were raised by both sides. The Bench was assured by the Advocate General appearing on behalf of the state that no further extension of the shutdown will be ordered.
The Advocate General claimed that all procedural safeguards prescribed under Telecom Suspension Rules were followed in ordering the shutdown. He submitted that although the order was issued under Section 144 of CrPC, the District Magistrate had the authority to pass the order. SFLC.in in its petition had challenged the jurisdiction of the District Magistrate in ordering the shutdown. The Advocate General has claimed in today’s hearing that District Magistrate is a competent authority as he is of the rank of Additional Secretary. SFLC.in has refuted this and was permitted to file a statement to counter this.
Counsel for SFLC.in submitted that the Internet is a lifeline in a pandemic situation enabling people to work, access health care, for students to access educational resources, and for access to justice. The State of West Bengal has already seen 3 shutdowns in 2020 itself. Shutting down the Internet violates the principles of proportionality as laid down in the Anuradha Bhasin judgment.
It was further argued that the shutdown order was not published and no ‘unavoidable’ reason was mentioned in the order necessitating a shutdown as directed by the Apex Court in the Anuradha Bhasin judgment.
Under the Telecom Suspension Rules 2017, a state shutdown can only be ordered by a Secretary, Home Department of the State and in unavoidable circumstances by a person, not below the rank of a joint secretary to the Government of India which has to be ratified by the competent authority within 24 hours.
Further SFLC.in also took permission from the court to file testimonials of citizens affected by the shutdown. On the question of the review committee meeting, it was submitted by the Advocate General that it will be held as per the law laid down in the Anuradha Bhasin judgment.
The Advocate General further questioned the locus of the petitioner in filing the case. The response given by Prasanth Sugathan on behalf of SFLC.in was that SFLC.in has been actively engaged in tracking shutdowns in the country and has been contacted by aggrieved citizens.
SFLC.in represented by its Legal Director, Prasanth Sugathan relied heavily on the law laid down by the Supreme Court in Anuradha Bhasin V. Union of India.
Additionally, the Advocate General has been asked to file affidavit replying to the grounds raised by the petitioner.
The matter is now to be listed on Friday, 22nd May 2020.
SFLC.in would also like to profoundly thank Human Rights Law Network (HRLN) as well as Adv. Indrajeet Dey and Mr. Savio Pinto, State Director HRLN for all their help and support.
A copy of the petition filed is attached below.
SFLC.in has been running an Internet shutdown Tracker since 2012 where it has been recording instances of Internet shutdowns across the country. Till date, the State of West Bengal has had a total of 12 shutdowns since 2017, 3 of which have been in 2020 itself.
SFLC.in has been actively advocating against these arbitrary shutdowns and has been closely monitoring the situation in Jammu and Kashmir. SFLC.in had written an open letter that was sent to the Government of the Union Territory of Jammu and Kashmir on 31st March 2020, requesting it to restore 4G internet in the Union Territory. A statement on the recent hearing on the 4G internet restriction in Jammu and Kashmir can be found here.
SFLC.in considers that Internet shutdowns affect the society adversely and are blatant violations of the fundamental rights to freedom of speech and expression, and the right to conduct trade and the right to life under Articles 19 and 21 of the Constitution of India. SFLC.in is committed to fight against arbitrary shutdown orders which grossly violate the rights of citizens.
No relief for Kashmir as SC asks executive to take a call on executive action.
The Honorable Supreme Court of India in Foundation for Media Professionals Vs Union Territory of Jammu and Kashmir and ANR(Diary No. 10817-2020X) has refused to give relief to the residents of Kashmir and has asked the executive to take a decision on restoration of 4G services.
The petition filed in the Supreme Court of India demanded the restoration of 4G internet services in the Union Territory to fight against an unprecedented pandemic(COVID-19). The Supreme court in an order dated 11.05.2020 has directed the formation of a Special committee headed by the Home Secretary, Government of India, and comprising of the Home Secretary, Ministry of Communications, and the Chief Secretary of Jammu and Kashmir. This special committee is supposed to look into the contentions of the petitioners and respondents and the alternatives suggested by the petitioners before arriving at a decision.
During the pandemic, when panic is high and the entire world is relying on the internet to gather information, to deprive an entire Union Territory of the internet is a drastic measure. SFLC.in had written an open letter earlier to urge the Government of the Union Territory to restore 4G in the valley.
Under the Telecom Suspension Rules 2017, a review committee has to be formed every time a shutdown occurs. This review committee is to be comprised of three officials namely, the chief sectary, the law sectary as well as the sectary to the state government(other than the home secretary). This review committee is supposed to look at whether the suspension was in accordance with the procedure stated under these rules. A major flaw of the Suspension Rules is that the review process of an executive action is also conducted by the Executive. The Supreme Court has now constituted another committee of the Executive in addition to the review committee. It is unfortunate that the Supreme Court has instead of taking a decisive stance shifted the decision making back to the executive.
Jammu and Kashmir has been facing an unprecedented communication blackout since 4th August 2020 after the abrogation of Article 370 which gave the erstwhile state a special status. 2G was restored in the Union territory after 213 days of complete internet blackout. The country has been forced to go on a complete lockdown due to COVID-19. To fight the said pandemic, timely information is crucial which is enabled by high-speed internet. In the absence of fast internet, the fight against COVID-19 will weaken as timely information cannot reach citizens, especially medical practitioners. This restriction has also had a harrowing impact on education and the economy. At SFLC.in, we have been documenting the impact of the ban on high speed internet in the fight against COVID-19.
Since 6.5.2020, following an encounter in South Kashmir, the valley is facing another internet blackout wherein even 2G services have been stopped.
We will continue fighting against this and other network disruptions that restrict citizen’s rights to free speech, education, and healthcare.
t was on the evening of August 4, 2019 that the erstwhile State of Jammu and Kashmir plunged into unprecedented communication darkness. Telephone and Internet connections were snapped in the valley and the next day Article 370, which gave Kashmir a special status, was abrogated. This started the longest communication blockade in the history of a democracy, cutting off Kashmir virtually from the rest of the world. It took exactly 213 days for the Centre to partially restore the internet in the valley, with obsolete 2G technology. This inadequate move was preceded by white listing certain websites raising concerns about net neutrality as well. Both the moves which tantamount to internet suspension were in consonance with the government order, dated March 4, 2020, issued by the Principal Secretary, Home Department, Shaleen Kabra [Government Order No.Home -21(TSTS) of 2020]. Although various civil society organizations and individuals had requested the government to restore 4G Connection, the Principal secretary passed another order extending the previous order till 27th April 2020.
The world right now is dealing with an unprecedented situation called COVID-19 which has been declared a global pandemic by the World Health Organization. The pandemic of extreme contagious nature, has forced almost all the countries in the world to go on a lockdown. Till date there are above 20,00,000 cases in the world out of which more than 12,000 are in India. The Union Territory of Jammu and Kashmir has recorded over 454 cases. COVID-19 which spreads exponentially through social contact, complete lockdown followed by self-isolation is said to be the only best measure against it. Most offices across the globe have shifted to remote work and meetings are being held virtually. Information to fight the pandemic is being circulated online, through Whatsapp bots, through video content, through advisories. It is 2020 and the world is digital, but Kashmir is still living at 250Kbps of speed. Information is a key tool to contain pandemic in view of no treatment or vaccine available. Crucial information if provided to doctors at the right time, can prevent them from making the same mistakes as has been made by the fraternity in other countries in containing the outbreak.
Generally, the internet speed required to perform day-to-day office work including video calls with screen sharing, sending emails with attachments, viewing videos; the internet speed on an average should be between 15-20Mpbs. The internet speed in Kashmir is currently 50 times less than the minimum desired speed.
We have put together some voices which we felt need to be heard to understand the gravity of the situation.
Shayan Banday, Engineer cum entrepreneur
Shayan, a technological engineer cum entrepreneur from Srinagar, Jammu and Kashmir says that even though Kashmiri’s have 2G internet, how can one even call that ‘internet’ given its low-speed? In the words of Shyam, where a pandemic is on the rise and information dissemination is of crucial importance, an information blackout is awful. The need of the hour is for doctors to research and this research has to take place over the internet. He adds further that for Kashmiris with an abominable 2G internet, leisure activities such as streaming Netflix or Hotstar is a distant dream. The only imaginable streaming is of a 144p video in Youtube, that too with constant buffering. When one has to stay at home 24 hours in a day and has no access to the one activity the world has access to, Shyan says, it is bound to affect the mental health of every Kashmiri. One cannot read, download, stream, nothing. Forget leisure, the situation is so abhorrent that a Kashmiri student does not even have access to education. Since Kashmir was under blockade from 5th August 2019, all schools and universities were shut. While they opened merely in March, they were hardly functional for 10 days before the onset of the COVID-19 virus, forcing the entire country to go on lockdown. Shyam talks of how the world is now educating online, with the help of apps such as Zoom, Google Classrooms, etc. But with 2G internet, Kashmiris do not even have access to that. With this, it is evident how the absence of high-speed internet has made life in Kashmir horrid, such that it has been 9 months and a Kashmiri student has had all roads to education blocked.
Waseem Wani, a software engineer from the Jammu and Kashmir working in Uttar Pradesh
Now, with the country-wide 21 day COVID-19 lockdown, Waseem narrates how the mix of this lockdown and network problems in the valley have affected businesses for those, like himself, operating in Jammu and Kashmir. After the lockdown, his company, akin to others, ordered a shut-down and asked employees to work from home, he too headed back home to the valley. However, daily, he experiences a fall in his work efficiency. Since all work is done online, it often takes a lot of time to take note of applications or even watch a tutorial when needed. His company has mandated a google meeting everyday at 9:30am. However, for him, it takes a lot of time to connect with the people which builds to constant frustration. In fact, recently, all employees from his company had an important meeting with the CEO online. Because of network problems, he faced a lot of difficulty in connecting to the meeting. To add to the frustration, while he was only able to join midway, the call continued to constantly disconnect. This dangerous mix, thus, makes him feel very restricted, having an impact not only on his productivity but also his emotional wellbeing. He continues to narrate the danger of this interplay by talking of the impact on health workers and consequent information dissemination in the state. He states that recently, the Ministry of Health and Family Welfare organised an online meeting for health workers to provide guidance on how to operate ventilators for critical patients affected by the COVID-19 virus. Pertinently, the network lockdown prevented the Kashmiri health workers from attending this important meeting. In fact, a prominent Kashmiri doctor reported to the media that while they wished to educate the Kashmiri people about the symptoms of COVID-19 and precautionary measures to be adopted, the low-speed internet barred them from doing something so crucial. He goes on to say that while students were badly affected even before the spread of the virus, their situation is gradually worsened, with access the education greatly hindered. Now, along with predominantly Kashmiri students, those who study outside the valley but have had to come home due to the lockdown are also suffering. While the world is operating on video-conferencing, low-speed internet has drastically impacted the functioning of these students, immensely impacting academics across the state.
Tanzeel Khan, Digital Rights activist
The problems that the people of the valley are facing are expansive and never-ending. For thousands of employees who have been asked to work from home, like Tanzeel himself, it is impossible to get any work done without high-speed internet. He says that attending video-conferences is not possible when you are connected to extremely slow internet. With the COVID-19 threat getting scarier day by day, for him and multiple others, continuing to work from home seems difficult. Further, dozens of businesses which rely solely on the internet have either shut down or moved to other places. Hundreds of people have lost jobs since the communications lockdown was imposed. He talks of how the people of Kashmir continue to remain unaware of the severity of COVID-19 since they do not have access to information online. He criticizes the government and says that in their recent order, they claimed that there is no hindrance to education and medical services due to restrictions on the internet. “But who would ask the people suffering from the ban on high-speed internet?” All schools across the country are shut down. Students of other states are anyway able to continue their education through classes online. But, he strikingly says, “Kashmir is the only place where the government ensures that there is a ban on offline as well as online education.” About 1.5 million students do not have access to online learning facilities. Moreover, with respect to medical facilities, as the COVID-19 cases in Kashmir multiply, the people in the valley do not have access to vital information which can save their lives and help stop the spread of the virus. Consequently, restricting internet access and free flow of information is running contrary to the global fight against COVID-19. While there have been numerous calls from a number of human rights organizations asking India to end this war crime and give people the right to access information and thus, the internet, there seems to be no end to this oppression. “Everything falls on deaf ears.” From his observation, he claims that there prevails a handicap of reportage of human rights violations committed by the armed forces. This is so because when there is no digital avenue available, nor any tools to propagate information, journalists and media houses have been rendered absolutely ineffective. He concludes by making a call to the Indian government to recognize the right to access information and put an end to the internet restrictions in Jammu and Kashmir.
Sayed Suri, Student and activist
He states that he remains outside of Kashmir right now for the past 4-5 years. Recently He discovered this situation when he had to return home without an idea for how long he will be in Kashmir. He talks about how his whole work is dependent on the internet because he has to do a lot of research. He talks about how academia is a completely IT based system. Everybody, from professors to staff communicate through the internet, basically through email. And the modem website is where everything is uploaded, from the course, schedules, guidelines and basically everything. He also talks about how he used social media to stay in touch with people who he can’t meet otherwise. He also states that he is also into social work and social activism. He states that the communication inter valley and outside the valley is completely blocked right now. He says that he reached Jammu and Kashmir on the 23rd of March, same time when the government said that most work should be done at home digitally, whether it is transaction or studies. In accordance, his university took out this notification and informed all the students that they will be having online courses for this semester and it will be held on Zoom. He states that from 23rd March till date he has not attended a single class. He has missed all the classes, even as he is not able to access the module page because on 2G network in Jammu and Kashmir. And sometimes if it may open, it takes 2-3 hours. Otherwise, mostly it says, “out of time” and goes back. He says that digitally handicapped losing out on his education. He says that he is losing all the information which he needs to get from the internet for reading and researching. He also expresses his frustration on not being able to transact digitally.
Yunus Rashid, regional spokesperson for the Jammu and Kashmir Student’s Association
He says that it is unfortunate that in the time of a pandemic, when the whole country is on lockdown and people are compulsorily staying inside their homes following proper advisories and precautions, Kashmir is without proper internet. With 2G speed, they are barely able to download videos or even find essential information about the COVID-19 virus, which is extremely crucial in these times. He talks of how this virus has impacted both students as well as medical practitioners across the valley. As a consequence of the abrogation of Article 370, Kashmiri students had to remain away from school for a period of 8 whole months. Now, as these students were ready to go back to school and resume education, the outbreak pushed them inside their homes once again, that too with just 2G internet. To battle this prolonged shut-down, while the teachers’ community, along the lines of the world, is trying to conduct classes online, conducting as well as attending these classes is a major task because of the slow-speed internet. Along with education, he talks of how doctors are also facing multiple problems. Recounting a recent experience, he quotes how a particular doctor in Kashmir had to wait for more than an hour to download a very important document on the COVID-19 virus. This is thus impacting information dissemination across the valley and thus, COVID-19 precautions and treatment also. Personally, Yunus tries his best to adjust to the slow-speed internet. Before sleeping at night, he puts the requisite file on download and checks for its completion in the morning. He talks of how naturally, this process is very disheartening. He, along with multiple others, continue to hope that 4G internet will be restored across the valley.
A professor who wishes not to be named talks about how it's difficult for the teachers to take online classes. Some record audio lectures and post them for students and sometimes post reading material. They basically find it very hard to look for ways to upload lectures and make them accessible to students on 2g.
A 1st Year Law student, Ramsha talks about how hard she has been finding to keep up with her classes. She usually connects to her classes via audio instead of video because of bandwidth issues. She points out how her university has been giving her a lot of assignments, projects and other research work and it's extremely difficult to keep up with the pace on 2g. She says that she eventually ends up spending the entire day studying because research takes double the normal amount of time and this makes the whole pandemic situation worse, mental health wise. Universities in Kashmir haven't been able to conduct semester exams because of the post August situation and her friends still haven't given their 1st semester exams and now they are struggling to keep up with online classes. Universities are proposing that they'll take both 1st and 2nd semester exams together once the situation improves.
The above notice is an example of how there have been restrictions placed on thousands of government servants,
The apparent crisis is not what it seems, it is the disparity in such times which prolongs it.
When the majority of the world is witnessing a huge upswing in internet usage as the current global pandemic pushes a quarter of the world under lockdown, there are still regions apart from Kashmir which are going through information blackout with illegal internet shutdown orders by the authorities.
The Centre did restore the services, but partially, by restricting the internet access to 2G technology and continuing blockade of social media.
Myanmar's Rakhine province is also going through a similar fate. The Ministry of Transport and Communication directed the four major telecommunications service providers to block countless number of websites including legally registered ethnic media websites, in the name of combating misinformation over COVID.
Similarly, Bangladesh clamped down internet services in Cox's Bazar where 900,000 Rohingya refugees live.
When people around the world have been ordered to observe self-isolation, access to correct information and precautionary measures are the only life saving tools in the absence of any vaccine and treatment.
SC judgment – Safeguards for shutdown, limited relief for Kashmir
The Supreme Court pronounced judgment in Anuradha Bhasin v UoI [WP(C) 1031/2019] and Gulam Nabi Azad v UoI [WP(C) 1164/2019]on January 10, 2020. The judgment has laid down the law on the issue of Internet shutdowns.
Case in brief:
Mobile and broadband Internet services were suspended in Jammu and Kashmir on August 4, 2019 prior to the repealing of Article 370 of the Constitution of India. A petition was moved by Anuradha Basin, the executive editor of Kashmir Times. This petition challenged the curbing of media freedom in the state. The petition claimed that the media in the erstwhile state cannot practice their profession owing to the internet as well as telecommunications shutdown in the state. A similar petition was moved by Gulam Nabi Azad seeking issuance of an appropriate writ to set aside, quash any orders, notifications, directions or circulars issued by Government of India under which all/any modes of communication have been shut down. Further an appropriate writ was asked to be issued which would immediately restore all modes of communication including mobile, internet and landline services throughout the state. so that the media could practice its profession
The Main issues framed by the Apex court were -
Could the Government claim exemption from producing all orders under Section 144 of CRPC?
Does Practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right?
Is the exercise of Prohibiting internet service by the Government valid?
Were the imposition of restrictions under Section 144 of CRPC valid?
Was the Freedom of the Press of petitioner(Anuradha Bhasin) violated due the restrictions imposed on the State?
What the Court held?
1. Access to the Internet and exercise of fundamental rights: The Court did not express any view on declaring the right to access the Internet as a fundamental right as this was not canvassed by the counsel for the petitioners. However, the Court held that “the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected”. This declaration would entail that any curtailment of internet access have to be reasonable and within the boundaries laid down by Art. 19(2) and 19(6) of the Constitution.
2. Orders to be published: The apex court directed that all orders under S.144 of Cr.P.C as well as under the Telecom Suspension Rules have to be published. The Court held that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. This will go a long way in ensuring that the suspension orders can be challenged under Art.226 of the Constitution before the concerned High Courts. Many applications under the RTI Act filed by SFLC.in were rejected by the authorities in various states, including the state of Jammu and Kashmir, citing national security as a reason.
3. Reasoned order to be passed: The Court held that Rule 2(2) of the Telecom Suspension Rules, 2017 requires every order passed by the competent authority to be a reasoned order. The Court further held that if an authorized officer is passing the order in unavoidable circumstances, the officer should indicate the necessity of the measure as well as the “unavoidable” circumstance necessitating his passing such an order.
4. Proportionality principle: The Court held that any curtailment of fundamental rights should be proportional and that the least restrictive measures should be resorted by the State. Although the state opposed selective access to internet services based on lack of technology, the Court held that if such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time and that such complete blocking/prohibition perpetually cannot be accepted. The Court further held that complete broad suspension of Telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’ and that the State must assess the existence of an alternate less intrusive remedy.
5. Suspension to be temporary in nature: The Court held that suspending internet services indefinitely is impermissible. It directed that the review committee must meet within 7 days of the previous review and look into compliance with requirements of Section 5(2) of the Telegraph Act as well as the proportionality of orders.
6. Orders under Section 144 of Cr.P.C to state material facts: The court held that power under Section 144 of CRPC is remedial as well as preventive and can be exercised when there is both a present danger as well as apprehension of danger. The danger should be in the nature of Emergency. Further, Section 144 cannot be used to suppress expression of opinion. Any order passed under Section 144 should state material facts to enable judicial review. The Court further stressed that principles of proportionality should be used and the least intrusive measure applied. The Court held that there shouldn't be repetitive use of Section 144 as well as it would amount to abuse of power.
Relief for the aggrieved
The contentions advanced by the respondents regarding terrorists threat and law and order seems to have swayed the court as the extensive treatise on proportionality in the judgment was not applied in the case of the prolonged shutdown in Kashmir. Although the Court held that suspending internet services indefinitely is impermissible, this was not applied to the shutdown in Kashmir that has been continuing for more than 5 months. The only relief granted was a direction given to the State review all orders suspending internet services forthwith. A further direction was given to allow government websites, localized/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
The positive aspect of the judgment is that the Apex Court has laid down the law on Internet shutdowns with emphasis on proportionality and reasonableness. The need to issue reasoned orders along with the mandate to make all orders public could result in reduction of arbitrary shutdowns. Removing the veil of secrecy from shutdowns itself could help in reducing the number of shutdowns. The Kerala High Court Judgment talks about Right to Education and Right to Privacy. These rights are not considered in the Judgment. The number of shutdowns in 2020 would determine whether this judgment has helped in protecting the rights of the citizens.