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Indian Government Will Publish Review Committee Orders on Internet Bans in Jammu & Kashmir, Without Details

Given the Review Committee’s orders will be published without details of the deliberations, it’s uncertain how meaningful the orders will be in terms of keeping a check on arbitrary internet suspension orders.

The Central government on February 23 submitted to the Supreme Court that it will publish the review committee orders assessing internet shutdowns in Jammu and Kashmir as public information, without giving the reasons for such shutdowns, according to a report by Bar & Bench.

Accordingly, a Bench of Justices B.R. Gavai, JB Pardiwala and Sandeep Mehta disposed of a plea by the Foundation for Media Professionals (FMP) seeking the State’s compliance with the top Court’s guidelines for imposing internet restrictions laid out in Anuradha Bhasin vs. Union of India, in 2020.

In a significant development in the case, on January 30, 2024, the Supreme Court had observed that the orders of the Review Committee established for overseeing internet shutdown directions by the Jammu & Kashmir authorities must be published.

Justices B.R. Gavai and Sanjay Karol had held that while deliberations leading to the shutdown order can be skipped, the order itself is required to be published.

Why does it matter:

Given the Review Committee’s orders will be published without details of the deliberations, it’s uncertain how meaningful the orders will be in terms of keeping a check on arbitrary internet suspension orders, which disproportionately infringe upon people’s freedom of speech and expression. A lack of information on why Internet shutdowns are issued also makes it difficult to challenge the constitutionality of such orders in court. While instances of internet shutdowns have only increased, it has been reported in the past that the Review Committees are slacking in effectively reviewing the orders. The Parliament Standing Committee on Information Technology had pulled up the Department of Telecommunications for not monitoring the functioning of the Review Committees in states where internet shutdowns are ordered.

 About the Anuradha Bhasin guidelines for internet shutdowns

Observing that an indefinite suspension of the internet is illegal under Indian law, the SC — in the significant Anuradha Bhasin v Union of India case — in 2020 laid out directions for internet shutdown orders to ensure that such measures do not violate constitutional limits for protecting fundamental rights. The case pertained to petitions filed against prolonged internet shutdowns in J&K in 2019 and while the Court did not order the State to lift the internet restrictions, the J&K administration was ordered to review all restrictive orders within seven days.

The Court declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).

“The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality,” it added. Further, the Court’s directions, guided by the principles of proportionality, legality and necessity, came to be referred to as the Anuradha Bhasin guidelines:

1. Orders must be made public: The court observed that while the government is empowered to impose a complete internet ban, any orders imposing such restrictions must be published in the public domain so that it is open to be challenged in a court of law.

2. Internet ban orders are subject to judicial review: The Court maintained that internet suspensions must be reviewed; such suspension orders can only be issued for a limited time and are subject to judicial scrutiny.

“An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration,” the court said.

As MediaNama had reported earlier, the bench also observed that an internet shutdown is applicable only in unavoidable situations, and authorities must explore alternate means before doing that.

3. Role of the Review Committee: The Telecom Suspension Rules, 2017, which empowers the State government to suspend telecom services, mandates the formation of a Review Committee in all states to review the legality of such orders and record its findings. Considering the rules laid out, the court reiterated that the Review Committee must review the suspension order within five days of its issuance, and must conduct a periodic review within seven working days of the previous review. The Committee must check if the orders are proportionate, temporary, and do not extend beyond the necessary time.

4. Internet shutdowns cannot be imposed under Section 144 of the CrPC: While examining the legality of internet ban orders passed under Section 144 of the Code for Criminal Procedure — which empowers authorities to prohibit the gathering of four or more people in urgent cases of nuisance or apprehended danger— the Court held that Section 144 “cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.” It also said that “an order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same.”

“While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure….Repetitive orders under Section 144, Cr.P.C. would be an abuse of power,” the Court held.

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Written By

Curious about the intersection of technology with education, caste and welfare rights. For story tips, please feel free to reach out at sarasvati@medianama.com

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