[Internet shutdowns] Misuse of Section 144 CrPC, denial of information flagged before Supreme Court

The Foundation of Media Professionals (FMP) has moved an application in the Supreme Court contending that states and union territories are not properly complying with the Anuradha Bhasin judgment passed in January 2020, in which the top court had ruled that access to internet is a fundamental right under the Constitution. .In this regard, FMP has raised concern over three key areas:. (i) Lack of dissemination of the Supreme Court's directions in the Anuradha Bhasin judgment and, consequently, the non-publication of internet shutdown orders; (ii) Denial of information under the Right to Information (RTI) Act or failure to respond to RTI applications regarding compliance with Anuradha Bhasin vis-à-vis publication of shutdown orders; and (iii) The continued misuse of Section 144 of the Code of Criminal Procedure (CrPC) to impose internet shutdowns..The application noted that several internet shutdowns were reported in 2020 in various states including Arunachal Pradesh, Madhya Pradesh, Manipur, Meghalaya, Rajasthan, Uttar Pradesh, and West Bengal. .FMP contended that the state governments have failed to proactively publish internet shutdown orders and also refused to provide such information in response to requests under the RTI Act. "At the bare minimum, copies of internet shutdown orders must be proactively published by the States and provided to citizens to enable them to exercise their fundamental right to judicial review. Failure to do so sends a message that in spite of this Hon’ble Court having declared an activity to be against the spirit of the Constitution, the enjoyment of basic fundamental rights by ordinary citizens remains subject to wanton abuse by the executive authorities, and sheer ignorance of law within the legal system," the applicant contended. .It was further submitted that RTI applications were filed in 2020 seeking information on internet shutdowns and on compliance with the Anuradha Bhasin judgment. The applicant goes on to state that the government authorities either failed to respond to these RTI applications or refused to provide the information sought..The application submitted further that no reply was received to RTI requests made in the cases of Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Daman and Diu, Goa, Haryana, Kerala, Maharashtra, Manipur, Mizoram, Nagaland, NCT of Delhi, Odisha, Puducherry, Rajasthan, Tamil Nadu, Telangana, Uttar Pradesh, and West Bengal..In the cases of Gujarat, Madhya Pradesh and Tripura, the governments denied the grant of information. Such an approach would render the entire judgment in Anuradha Bhasin ineffective, FMP contended. .Added to this, FMP has contended that there is a continued misuse of Section 144, CrPC to impose internet shutdowns."RTI replies by state governments that are available in the public domain reveal that there has been a continued misuse of Section 144, Cr.P.C. to impose internet shutdowns by District Magistrates, who are not empowered to exercise powers under the Telecom Suspension Rules," the application stated. .In particular, an RTI reply received from the Andhra Pradesh government is referred to, wherein the police department is stated to have said that internet shutdowns can be imposed invoking Section 144, CrPC despite the judgment in Anuradha Bhasin. A legal notice was thereafter sent to the State of Andhra Pradesh calling for immediate compliance with the Anuradha Bhasin judgment. However, no reply has been received to this legal notice till date, the applicant said..The harm emanating from this state of affairs is enormous, FMP has contended. "Besides indicating disregard for the Constitution and this Hon’ble Court, the failure to publish internet shutdown orders; respond to RTI requests or provide information regarding the same in response to RTI requests regarding compliance with Anuradha Bhasin; and the continued use of Section 144, Cr.P.C for temporary telecom service shutdowns is a direct violation of fundamental rights under Articles 19(1)(a) and 19(1)(g) of the Constitution of the persons against whom the provision is invoked," the application stated. .Apart from committing an unconscionable deprivation of fundamental rights, the use of Section 144 CrPC for the blanket suspension of internet services removes any element of procedural safeguard under the Telecom Suspension Rules, 2017, it is argued. .It is also pointed out that state governments cannot resort to blanket exemptions under Sections 8(1)(a) or 24(4) of the RTI Act when it comes to dealing with notified security and intelligence organizations..In this backdrop, the FMP has urged the Supreme Court to issue the following directions, among others:.That the Central government or the Supreme Court Registry or any other authority dispatch a copy of the judgment in Anuradha Bhasin v. Union of India to the Chief Secretaries of all State Governments and the Union Territories as well as to all High Courts. Circulars should be issued bringing the Anuradha Bhasin judgment to the notice of the concerned State authorities, District Magistrates, and police departments to prevent failures of justice; That the Central government issue an advisory, circular, or notification State and Union Territories clarifying that after the Anuradha Bhasin judgment, all internet shutdown orders must be proactively made available in the public domain; That the Central government issue an advisory, circular, or notification to States and Union Territories clarifying that after the Anuradha Bhasin judgment, no orders restricting access to communication services, including the internet, can be passed under Section 144, CrPC; That the Central government issue a advisory, circular, or notification clarifying that all information regarding internet shutdowns must be made available to the public in response to RTI requests; That the Central government publish data of all internet shutdowns that have been authorized under the Temporary Telecom Suspension (Public Emergency or Public Safety) Rules, 2017 or Section 144 CrPC after the Anuradha Bhasin judgment, to ensure compliance of the same. .The application has been drafted by Advocates Vrinda Bhandari and Devdutta and filed by Advocate Prateek Chadha..[Breaking] Right to Freedom of Expression through the Internet is part of Article 19(1)(a): SC in petitions challenging restrictions in Kashmir