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FMP representation to J&K administration for comlpliance of SC judgement in Anuradha Bhasin case

The Foundation for Media Professionals has made the following representation to the administration of Jammu and Kashmir:

 

To,

Shri Shaleen Kabra
Principal Secretary, Home Department
Government of Jammu and Kashmir

30 January 2020

Sub: Representation for compliance with the judgement of the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India, W.P. (C) No. 1031 of 2019 dated January 10, 2020

Respected sir,

Foundation for Media Professionals (FMP) is a non-profit society registered under the Societies Registration Act, 1860 established with the objective of defending and expanding freedom of the press. As an organization committed to protecting the rights of all journalists, we were deeply concerned about the impact of the communication shutdown and movement restrictions imposed in Jammu and Kashmir on 05 August 2019 on journalists.
 
To support press freedom in Jammu and Kashmir, we filed an intervention application before the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India (I.A. No. 139555 of 2019 in W.P. Civil No. 1031 of 2019). Vide order dated 01.10.2019, the Hon’ble Supreme Court took on record FMP’s application, and permitted it to file additional documents. Thereafter, we participated in the proceedings by making written and oral submissions about the unconstitutionality of the restrictions in Jammu and Kashmir, which were referred to in the final judgment.
 
The Hon’ble Supreme Court delivered its judgement in Anuradha Bhasin v. Union of India on 10 January 2020, and it laid down several guidelines for the government. Unfortunately, most of these guidelines have not been complied with and continuing failure to do so would amount to contempt of the Hon’ble Supreme Court.
 
As on date, only 2G internet access has been provided to the residents of Jammu and Kashmir to access 301 whitelisted websites while millions of other websites remain blocked. The lapses in complying with the Hon’ble Supreme Court’s directions in Anuradha Bhasin v. Union of India are enumerated below for immediate course correction.


Failure to publish past orders issued under Temporary Telecom Suspension Rules, 2017
 
The Hon’ble Supreme Court has categorically held that the government must proactively publish all past and future orders issued under Section 144, Code of Criminal Procedure, 1973 and the Temporary Telecom Suspension Rules, 2017. The Hon’ble Supreme Court has also clarified that the government cannot cite administrative inconvenience to refuse publication of orders. However, despite this explicit direction, the Government of Jammu and Kashmir has not published past orders issued between 05 August 2019 and 14 January 2020 on its website or any publicly accessible forum.
Unless these orders are made publicly available, it is impossible for citizens and the judiciary to determine whether the orders were issued after proper application of mind and consideration of material facts. The five-month-long suspension of telecommunication services from 05 August 2019 onwards has caused losses in thousands of crore of rupees to the residents of Jammu and Kashmir. Therefore, we urge the government to comply with this mandatory obligation at the earliest and proactively publish all past orders issued under the Temporary Telecom Suspension Rules, 2017.


Failure to publish recommendations of the Review Committee constituted under Temporary Telecom Suspension Rules, 2017
 
The Hon’ble Supreme Court has mandatorily directed the Review Committee constituted under the Temporary Telecom Suspension Rules, 2017 to periodically review the need for suspension of telecommunication services every seven working days. However, there is no information available in the public domain about whether the Review Committee has complied with this direction and what recommendations were made by the Review Committee, if any. Therefore, the Government of Jammu and Kashmir must ensure the Review Committee is conducting periodic review in accordance with the Hon’ble Supreme Court’s direction and publish the recommendations made by the Review Committee.


Failure to adhere to the proportionality standard and adopt the least restrictive alternative
 
In Anuradha Bhasin v. Union of India, the Hon’ble Supreme Court has held that any restriction on use of the internet for exercise of freedom of speech and expression guaranteed by Article 19(1)(a) and freedom of profession, occupation, trade and business guaranteed by Article 19(1)(g) should adhere to the proportionality standard by adopting the least restrictive alternative available.
 
In the present case, the Government of Jammu and Kashmir has not adopted the least restrictive alternative for four reasons. First, the practice of whitelisting acceptable websites instead of blacklisting websites hosting illegal content is inherently disproportionate because under the framework of the Indian Constitution, restrictions on fundamental rights must be the exception and not the norm. Article 19(1)(a) guarantees the right to freedom of speech and expression to all citizens unless a specific restriction is imposed on such right under Article 19(2).  For these reasons, Section 69A of the Information Technology Act, 2000, which empowers the government to block access to websites, requires proper procedure to be followed prior to blocking access to any website and it does not countenance the possibility of a whitelisting regime of internet censorship which would be anathema to the Indian Constitution. Therefore, if the government is concerned about misinformation and incitement of violence, it may selectively blacklist websites which contain illegal content in accordance with the procedure prescribed under Section 69A of the Information Technology Act, 2000 but it cannot impose a generic ban on all websites and selectively whitelist certain websites.

Second, a whitelisting regime of censorship is rife with arbitrariness because government officials do not have to apply their mind before blocking access to a specific website. In a whitelisting regime, the default position is that access to all websites is prohibited, and therefore, many websites are blocked merely because government officials are not aware of them.  This type of arbitrariness is evident from the list of 301 websites which have been whitelisted in Jammu and Kashmir pursuant to order dated 24.01.2020 because many websites have been excluded without any explanation while other websites belonging to the same category have been included. For instance, there is no principled basis on which websites of certain news publications have been whitelisted while others remain banned.


Third, a whitelisting regime of censorship is not technically feasible because of the interconnected nature of the internet. 301 websites which have been whitelisted by the government will be fully functional only if the web application is permitted to make network calls to other websites to load JavaScript, style sheets, maps, videos, images, analytics etc. For instance, having access to an e-commerce platform like Amazon is meaningless unless the customer is also able to see images of the product that he/she wants to buy. Further, in many cases, while the website’s main domain has been whitelisted, its subdomains which contain the log in page or other important features remain blocked. Therefore, a large number of these 301 websites are not practically usable for the residents of Jammu and Kashmir.
Finally, the downgrading of internet speed to 2G is unnecessary in a system where access is only being provided to 301 whitelisted websites which have been approved by the government. Internet connectivity at 2G speed would make it practically impossible for individuals to even access a large number of the whitelisted websites which have complex and heavy elements.  Since these whitelisted websites do not host any illegal content and are necessary to avail essential services, the government must restore internet connectivity at normal speed in Jammu and Kashmir.

For the above mentioned reasons, we urge the Government of Jammu and Kashmir to undertake the following measures immediately to comply with the Hon’ble Supreme Court’s directions in letter and spirit. We call upon you to take the following three steps:

Publish all past orders issued under the Temporary Telecom Suspension Rules, 2017 on the government’s official website and other publicly accessible forums.
 
Publish all past and present recommendations of the Review Committee on the government’s official website and other publicly accessible forums.
 
Restore mobile and broadband internet services at normal speed in all districts of Jammu and Kashmir and provide access to all websites except those which have been blocked for hosting illegal content under Section 69 of the Information Technology Act, 2000, if any.


Thanking you,


(Revati Laul)
Director,
Foundation for Media Professionals

 

This representation has been prepared with the advise and drafting assistance of lawyers associated with the Internet Freedom Foundation.