Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.
Although the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act — the law that deals with restricting Internet access — does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.
The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
“Any law which demands compliance of the people requires to be notified directly and reliably,” it said.
This allows individuals to now challenge the orders before courts in J&K and rest of India. In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka. While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts.
In December last year, the Gauhati High Court directed the Assam government to restore Internet in the state after reviewing suspension orders.
India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019. The ongoing shutdown in Kashmir is the longest ever in any democratic country.
The Supreme Court also highlighted ‘gaps’ in the current Suspension Rules. In favour of the petitioners, the court tightened the window for broad telecom suspensions, stating they had to be “necessary” and “unavoidable”.
While the Solicitor General had argued during the proceedings that blocking only some social media services was not feasible, the Court responded that “the State should have attempted to determine the feasibility of such a measure” and “if such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time. Such complete blocking/prohibition perpetually cannot be accepted by this Court”.
There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives will be inadequate, the bench stated.
Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately. Vrinda Grover, counsel for petitioner Anuradha Bhasin, said she is waiting for the government to take mandated actions — publishing the orders and setting up a review committee to decide whether these orders withstand the proportionality principles outlined by the court — before deciding next legal steps.
“Once these orders have been reviewed, they are open to be challenged by everybody and can be subject to judicial review,” Grover said. “What the state was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy. They said, therefore leave it to the state, armed forces, and security forces to determine what restrictions need to be imposed, and the court should not be reviewing these orders. On that aspect, the court has come down very clearly to say that it will judicially review executive orders.”
“The ramifications of this, to my mind, are beyond discussion in value. We do see today that whenever there are perfectly democratic, peaceful protests, it has become a default setting of administrative authorities across the country to shut down the Internet and to impose Section 144. The court has said you cannot arbitrarily do this. Not just an apprehension of danger, but you have to have an emergency question.”
On the issue of Constitutional protections to freedoms via the Internet, Grover said this was an unprecedented court recognition of the new important mediums of expression and trade.
The bench also noted that the law needs to keep pace with technological development: “We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non-recognition of technology within the sphere of law is only a disservice to the inevitable.”