New Delhi: The Supreme Court on Tuesday said that orders reviewing internet suspension are not meant to be “kept in cupboard”, giving two weeks to the Jammu and Kashmir administration to take instructions on making it public after the latter informed the Court that there was no requirement to place these orders in public domain.
A bench of justices BR Gavai and Sanjay Karol said, “Review orders are not to be kept in the cupboard. Let the state show from the orders we have passed that there is no requirement to publish review orders.”
The Court was hearing an application moved by Foundation for Media Professionals (FMP), which approached the Court in 2020 challenging the internet shutdown in the erstwhile state of Jammu and Kashmir (now a union territory). These orders were subsequently withdrawn in February 2021 after a Special Committee headed by Union home secretary assessed the prevailing situation, and recommended for the ban to be withdrawn. Accordingly, the UT administration set up a review committee that led to the withdrawal of the ban.
Advocate Shadan Farasat appearing for the media foundation said that the Supreme Court in two consecutive orders passed in January 2020 in the Anuradha Bhasin v Union of India case, and in May 2020 in the Foundation for Media professionals v Jammu & Kashmir case, categorically held that publication of orders imposing internet shutdown is a must as only then can the orders be challenged before the Courts. He said that the Review Committee, which reviewed the ban orders should be published as they are not concerned with the deliberations that took place in the Special Committee meeting.
The Court told the J&K administration, “If you read our orders, prima facie it is clear you have to publish (internet clampdown orders). Take instructions in two weeks.” While the state had already published the initial orders banning internet, it held reservations on making the review order public.
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Additional solicitor general (ASG) KM Nataraj appearing for J&K said, “These issues arose during the pandemic. Subsequently, there were two judgments. We have complied with it. Now this application is seeking a review of those orders.”
The UT administration filed a short affidavit last year giving reasons for opposing the application. It said that neither the Anuradha Bhasin matter nor the subsequent order of May 11, 2020 in the FMP case required the UT to publish the review order.
The affidavit said, “Decisions of the special committee (headed by MHA secretary) deal with highly sensitive and secret/confidential matters relating to militancy, terrorism, cross border infiltration, security and defence of the nation…Likewise, the deliberations and findings of the statutory review committee would stand on the same footing.”
Apart from the local administration, as the special committee discusses and deliberates on inputs received from armed forces, paramilitary forces, and security agencies in arriving at a final decision, such deliberations cannot be made public. The UT administration submitted, “National and public interest requires that the records of the deliberations and/or the minutes of the meetings of Special Committee not be put in the public domain.”
The bench told ASG, “They are not wanting the deliberations to be made public, only the order.”
The internet clampdown in J&K ordered in 2020, coincided with the countrywide lockdown due to the Covid-19 pandemic that paralysed trade, health and educational facilities in the state. The constitutional validity of such a ban came up for challenge in the Anuradha Bhasin judgment. The Court held that such a ban cannot be indefinite as it violates the fundamental rights of citizens.
The judgment said, “The respondent state/public authorities are directed to publish all orders in force and any future orders under Section 144 CrPC and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the high court or appropriate forum.”
The judgment further held that under Rule 2(2) of the Telecom Suspension Rules, 2017, the decision on the ban must be placed before a Review Committee that provides for adequate procedural and substantive safeguards to ensure the imposed restrictions are “narrowly tailored”.
In the subsequent order passed in May 2020, the Court directed as a one-time measure the constitution of a Special Committee headed by Union home secretary, besides Union secretary in department of communications and J&K chief secretary.
Tyler Fields is your internet guru, delving into the latest trends, developments, and issues shaping the online world. With a focus on internet culture, cybersecurity, and emerging technologies, Tyler keeps readers informed about the dynamic landscape of the internet and its impact on our digital lives.
