Explained: Why Internet Shutdown In UP Is Violating The SC Guidelines In Anuradha Bhasin Case?

Amid the ongoing tensions in Uttar Pradesh following the death of farmers protesting against the agri laws Internet services were shut down in Lakhimpur Kheri and Sitapur on Wednesday, following reports that some Congress leaders were on their way to meet party General Secretary Priyanka Gandhi Vadra and also the families of the victims.

Though there was no official communication of the shutdown of services, a senior official said that this had been done as a precautionary measure.

"We will thwart all attempts to create tension in the area. The shutdown may be lifted by evening if no untoward incident takes place," he said.

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But according to Internet Freedom Foundation, the internet shutdown is in violation of the guidelines the apex court had issued in the Anuradha Bhasin case.

Anuradha Bhasin v. Union of India

In Anuradha Bhasin v. Union of India, the Supreme Court was called upon to determine the constitutionality of the communication shutdown imposed in Jammu & Kashmir on 05 August 2019.

In its judgement, the Court noted that there were several gaps in the Telecom Suspension Rules 2017 and it read certain procedural safeguards into the Rules to fill this lacuna.

We have written to the IT Standing Committee regarding its visit to J&K and the repeated instances of internet suspensions without complying with the Hon'ble Supreme Court's guidelines under issued in Anuradha Bhasin v. Union of India. #KeepItOn 1/n https://t.co/j9IJhW6n8n pic.twitter.com/ENy3GsJA2X

¡ª Internet Freedom Foundation (IFF) (@internetfreedom) September 2, 2021

The Supreme Court of India had ruled that an undefined restriction of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality.

The Court recapitulates that freedom of speech and expression included right to the internet and therefore was protected under the constitution. However, it could only be restricted when there is a risk against citizens and in the name of national security.

BCCL/FILE

The court ruled that this order which imposes a complete restriction on the internet should be published for the public and was also subject to judicial review.

¡°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 ¡­. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism.

The case

The petitioners had argued that such restrictions not only impact the right to free speech of individuals but also impinge on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and could have been passed, as has been done in India while prohibiting human trafficking and child pornography websites.

BCCL

Arguing for the government, Solicitor General had submitted that the internet was never restricted in the Jammu and Ladakh regions. Further, he submitted that social media, which allowed people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. The purpose of the limited and restricted use of the internet is to ensure that the situation on the ground would not be aggravated by targeted messages from outside the country. Further, the internet allows for the transmission of false news or fake images, which are then used to spread violence. The dark web allows individuals to purchase weapons and illegal substances easily.

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Telegraph Act

Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, Cr.P.C., a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger.

The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet.

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