I. INTRODUCTION
One of the most problematic aspects of Indian public administration is the absence of a public record of any internet shutdown orders. Where state prohibits the Internet without any public domain order, it violates the rights under the Constitution Articles 19 and 21, thus the aggrieved parties are not given an opportunity to contest such an order through any legal proceedings. As pointed out by the Apex Court in Anuradha Bhasin v. Union of India, public nature or the transparent aspect of these orders are part of constitutional necessity and not formality. This article focuses on how an order can be contested from the legal side, what is the framework given for the internet shut down by the legislation and also the remedies available for the aggrieved parties.[1]
II. CONSTITUTIONAL MANDATE: ARTICLES 19 AND 21.
2.1 Internet as a tool of fundamental rights
However, in Anuradha Bhasin v. Union of India,, 2020 3 SCC 637, the Supreme Court ruled that the right to free speech and expression via the internet is available under Article 19(1)(a) and the right to do business through the net is available under Article 19(1)(g). The Court also found out that internet is just a medium of the right so if the internet is restricted to be accessed then the effect on restriction of the internet access must be similar effect as the rights. The court in this decision did not state that the internet access is a fundamental right by itself but the consequence would be same whether it is constitutional to withdraw internet would be checked with reference to the Article 19(2) and Article 19(6).[2]
2.2 The Proportionality Standard
The Anuradha Bhasin judgment set out a four-part test for any shutdown order:
1. The Legitimate Aim must have a coherent reason be it for public order, security, or the prevention of crime and disorder.
2. Relevance the relevance of the measure depends upon its purpose
3. If required, only the least restrictive measures can be enforced, and it is prohibited to close completely if targeted measures would be sufficient.
4. All of which, to whatever degree the means adopted are erosive, will not have a disproportionate burden on the rights which the means affect in pursuit of the desired end.[3]
Relevant for the point about non-publication: None of the above points can be looked into by the courts nor by the public affected if no publication. Not to make public the order is not just an error but it is a significant error that negates the constitutionally mandated test of proportionality.
III. THE STATUTORY FRAMEWORK AND THE PUBLICATION REQUIREMENT
3.1 The Old Regime-the Indian Telegraph Act, 1885 and the 2017 Rules (start here):
The past legislation on which shutdowns are predicated, and this legislation currently under question, has been Section 5(2) of Indian Telegraph Act, 1885 which has provided for the power of shut down: In time of war, [or] public emergency, the Central Government or the State Government may, when it is expedient so to do, take value of the powers vested by this Act with respect to telegraphs or any of them, and shall to the extent of any inconsistency be deemed to have directed their exercise with respect to any telegraph or telegraphs or the transmission of any telegraph or telegraphs. Thus, Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 were framed. Under the rules, a mechanism was laid out to pass an order and get a further order passed through a Competent Authority and a Review Committee. Addendum to Rules 2017 (2020) limits the shutdown orders to 15 days, and emphasis was placed on periodic review. It was not stipulated in the first instance that the orders were to be published; however the orders from the court included a pre-imposed direction that a non-published order is non-reviewable and thus unconstitutional.[4]
3.2 The new order: Telecommunications Act, 2023 and the Rules of 2024
Internet shutdown regime has been completely changed on 22 nd November, 2024. The preliminary legal basis for calling and telecom services to be shut down is provided in Section 20(2)(b) of the Telephone Act, 2023. In accordance withArticle 20(2)(b) of the Telephone Act, 2023, theTelecommunications (Temporary Suspension of Services) Rules, 2024, are the successor to the 2017 Rules and 2020 amendment. These 2024 Rules require the competent authority to:
1. Have you investigated all the alternatives before deleting the services?
2. Confine the order to a specific region, a fixed time interval.
3. Do published orders provide specific and adequate reasons for suspension?
It is now part of the law as a result of the 2024 Rules. It follows, therefore, thatFailure to publish the order after 22nd November 2024 is also a breach of prescribed law, as it is contrary to the constitution.[5]
3.3 Section 69A IT Act, 2000.
Section 69A of the IT Act, 2000, which is an addition and stipulates that information can be blocked in the interest of National security, the defense of India, the sovereignty and integrity of India, and public order. Even though the order talks about blocking of content, and not shut down, the same is applicable to where shut down is disguised as order of blocking, whereas the IT (Blocking) Rules, 2009, also requires recording of reason of blocking, where if not made public has been challenged.[6]
IV. THE LEGAL CHALLENGE TO NON-PUBLICATION: GROUNDS AND ARGUMENTS
4.1 Grounds 1 and a Breach of 14: Unpredictability
Any executive decision made in secret and which deny access to constitutional fundamental rights is ipso facto arbitrary by virtue of Article 14 of the Constitution. For a long time, the United States Supreme Court has indicated that executive action must be non-arbitrary, non-discriminatory and rational. The un-published order to take the Internet down:
-It is not provable that there is a use.
- Unable to prove was issued to first owner.
This cannot be submitted to assess adherence to the geographic and temporal constraints set forth in the 2024 Rules. All these individually can be considered arbitrary under Art.14.[7]
4.2 Ground II: Bar to Judicial Review under Article 32 and 226
Anuradha Bhasin Court The court struck down orders on shutting down facebook to be made public to the effected parties to enable them challenge the said order. As held in the judgment transparency is the fundamentum of a judicial review and an order that passes without it will be unreviewable and a deprivation of the „fundamental right to seek justice in accordance with Articles 32 and 226 of the Constitution. It effects the structure. The Constitution not only establishes but protects the rights. But if there were a established convention on the publication of the business notice with an order of closure then the entire acts of the state would be out of the room of the Constitutional law. The Anuradha Bhasin Court held that the reasons of the orders of publication of their orders are that there were two strong reasons of department for publication of orders- firstly constitutional compulsions and secondly procedural requirements under suspension rules.[8]
4.3 Ground III a Non-Compliance with Anuradha Bhasin Directions
These directions issued in Anuradha Bhasin are mandatory to all the State Authorities in India. The Court directed that:
-Any directive for shutdown must be justified and disseminated.
- They aren‘t for life, but for the short term.
To be regularly assessed by the Review Committee. And can their validity be reviewed in the courts? Forgetting to place an order constitutes both 1st and 4th breach. Apart from the writ petition and the orders passed in Anuradha Bhasin, an order of the Supreme Court on an unpublished order can also be disposed of by the contempt powers.
4.4 Ground IV a Ultra Vires the Suspension Rules
Printing of order with reason are compulsory as per the rules of Telecommunications (Temporary Suspension of Services) Rules, 2024. This pre-condition has not been met by this un-published order. The order has exceeded the power conferred by the parent act i.e Telecommunications act, 2023 s 20(2)(b) in that Parliament‘s intention has not been considered. It is established that where a law invests power on the ground of a certain object it may have a further consequence. Where power is conferred with a condition attached to it, and the power itself does not come within that condition it is deemed to exceed it, and consequently it will not only be void but also will be uncertain.
V. APPLICATION TO SPECIFIC JURISDICTIONS: MANIPUR, PUNJAB, AND HARYANA
5.1 Manipur - Manipur is a centrally located state of North Eastern region of India. It is a hill state, predominantly a tribal populated region and an administration by non tribals. It is located between 23-45 N latitude and 93-2 E longitude and spread over an area of 22,347 sq. Km. The state is bounded by Nagaland on the north, Mizoram on the south, Assam on the west and Meghalaya on the east. Imphal is its capital. 1.2 Topography and physiography of Manipur. The Anuradha Bhasin test was employed by the Manipur High Court to terminate the indefinite communications blackout during the 2023 Manipur ethnic violence. Court also said that reasons must be published, should be open to judicial review and ordered for phased restoration and supervision rather than complete suspension. Thus, the order explicitly suggests that reasons for shutting down could not be done away on the pretext of real threats to security. Additionally, the issue of livelihood (and by presumption of the court, education as well) was emphasized.[9]
5.2 Punjab & Haryana
The question of whether the order‘s terms were vague or whether the order had been used as a matter of convenience has been raised in the context of orders passed in Punjab and Haryana. These orders have been declared only available to meet particular local emergencies or public safety demands, must have the facts challengeable by the people and have been published in order for this challenge to be possible and must only be limited in time. It is mainly when use of the General ‘law and order’ reasons for temporary closure is made that the courts have shown themselves eager to examine the applications. The worst affected states Haryana & Manipur had around 1700 hours of internet shut-down and in the year 2024, the worst hit state continued to be Haryana. The sheer volume of shut-down and covert orders caused more litigation, increased civil society pressures to follow the Anuradha Bhasin directions[10]
VI. FOUNDATION FOR MEDIA PROFESSIONALS V. UT OF J&K (‘4G CASE’)
Most directly utilizing the Anuradha Bhasin framework to support an internet shut down decision is Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453 Casemine. This matter came to light during COVID-19 lock-down when the UT of J&K had imposed 2G internet, the petitioners claimed it abridges their rights under Art 19(1)(a), 19(1)(g) and Art 21 to health, education, business and speech & expression. The court could not be expected, and did not, answer both questions raised. Rather, it asked an ad hoc Special Committee to examine the merits of, and appropriateness of, continuing with the 2G restriction in the light of the interest of the state versus the rights of the petitioners. Observing that it was a question of balancing national security and public order, and fundamental rights: [11]
This case has two key points for the non-publication challenge:
1. The fact that the Court on established the Special Committee is demonstrative of what kinds of arguments, even if security is used as grounds, must be proven in a proper procedure by the state and not simply stated.
2. It was held in this case that this is the jurisdiction in this matter and the present case was a practical illustration of that. The case did not create a right of 4G, rather said restrictions should be reasonable and be subject to review.
VII. THE KERALA HIGH COURT‘S CONTRIBUTION: FAHEEMA SHIRIN
In Faheema Shirin R. K. v. State of Kerala, 2019 SCC OnLine Ker 2978, the Kerala High Court added internet access under one of the rights in Article 21. Although, this judgment is from before the Anuradha Bhasin, and it does not actively support the balance of rights, but it assisted theSCin the proportionality exercise. Although,2non-publication challenge2is distinct, and it is Article 21 which is involved; non-publication of order relating to shutdown impacting the health, education, livelihood, affects the life and liberty rights, taking it out of Article 19.[12]
VIII. REMEDIES AVAILABLE TO PETITIONERS
8.1 Writ of Mandamus
A Writ of Mandamus to stop the Council from meeting. No such Writ is available and one would not lie in these circumstances. In a writ of mandamus from the High Court under Article 226 or writ from the Supreme Court under Article 32 can be filed by petitioner asking the state to publish the shutdown order with reasons in writing. This reflects the 2024 Rules, as indicated in the directions from Anuradha Bhasin .
8.2 Declaration of Unconstitutionality/Nullity
A declaration of unconstitutionality or nullity may be made by the Constitutional Court when the Council of Convulsions rejects or provides a decision in administrative body-psychiatry cases or execution of the case on convulsions, or when the Constitutional Court decides that the Council of Convulsions is obliging the body and mind for the second time to undergo psychotherapy. A petitioner may ask the court to rule an unknown shut-down order unconstitutional and void on the following grounds:
- It is discriminatory and arbitrarily violative of Art.14.
- It is violative of Articles 19(1) (a) and 19(1) (g) due to excessive width. When the measures impinge on the livelihood, health, or education of an individual. It violates Article 21.
- It does not nor will it conform to the procedures specified in Telecommunications Act, 2023 & Rules 2024.
8.3 Contempt Proceedings
Where, however, the government is ordered by a court of law to publicize the shutdown orders, and fails to do so, contempt proceedings may be initiated under the Contempt of Courts Act, 1971. The said order of the Supreme Court in Anuradha Bhasin still continues to be a court order, violation of which might entailcivil contempt.
8.4 Interim Relief
Interlocutory orders may be prayed for on interim stay of the closure and immediate publishment before the hearing of the main matter. That is why the State wants to be open and not secret, because the circulation of a secret order can lead to a violation of rights.
IX. THE STATUTORY TRANSITION AND ITS IMPLICATIONS FOR PENDING CHALLENGES
The change that takes place is of going from 2017 Rules to Telecommunications (Temporary Suspension of Services) Rules, 2024 is relevant to all those cases which are initiated after the 22nd of November 2024.
1.The claimant should now not only prove grounds on constitutional aspects, but also prove non-compliance with the regulations in terms of Section 20(2)(b) Telecommunications Act, 2023 as published in the gazette.
2. Publication of reasons. The 2024 rules make provision for the publication of reasons. Legal challenge to them (directly rather than indirectly through directions by the court as with the 2017 rules) is much simpler.
3. The tests prescribed by the Anuradha Bhasin case remain relevant and have not been modified by the new rule of law. The 2024 Rules would be construed and applied by the standard of proportionality laid down by the apex court.
X. CONCLUSION
The premise of questioning why the instructions for turning off the internet were not published in India stems from complementary constitutional and legal rationales. The Anuradha Bhasin judgment which has been narrated above in extenso reiterated that, Transparency is not a matter of option but a matter of requirement, as it is transparency, which can be a measure of the seriousness of a shutdown, and it is only through proportionality that the fundamental rights can be achieved. An order of publication is in essence the denial of remedy, so to speak. The legal basis under new regime (current law and rules (Telecom Acts, 2023 and 2024 Rules)) is changed from stealthy legislative intervention on the publisher obligation to clear legislative directive. This improves the petitioners argument significantly. This fact that rulings of the Manipur, Punjab and Haryana HC‘s has historically been unanimous confirms that it‘s the kind of equally isolated event that shutdowns are. It‘s not permissible to have orders which are not published and enforced selectively. The onus is on the government to justify the necessity and explore all less restrictive alternatives, and publication in easily accessible form for potential judicial review.
Reference
[1] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (Supreme Court of India), per Ramana J., paras 2, 87. The Court held that internet restrictions engaging Articles 19(1)(a) and 19(1)(g) must be published to enable judicial review; non-publication renders the order constitutionally infirm.
[2] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, paras 51–52 (internet as medium of free speech under Art. 19(1)(a) and trade/commerce under Art. 19(1)(g)); Constitution of India, Arts. 19(2), 19(6) (permissible restrictions).
[3] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, para 90 (four-part proportionality test: legitimate aim, suitability, necessity, and balancing/strict proportionality). See also Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, para 60 (proportionality doctrine in Indian constitutional law).
[4] Indian Telegraph Act, 1885 (Central Act 13 of 1885), s. 5(2); Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Ministry of Communications Notification No. 844-C/2017), rr. 2–4 (competent authority, Review Committee); Amendment Rules, 2020 (limiting duration to 15 days with periodic review).
[5] Telecommunications Act, 2023 (No. 44 of 2023), s. 20(2)(b); Telecommunications (Temporary Suspension of Services) Rules, 2024 (notified 22 November 2024), rr. 3–5 (mandatory publication of reasons, geographic/temporal limits, consideration of alternatives).
[6] Information Technology Act, 2000 (No. 21 of 2000), s. 69A (power to block information in interest of sovereignty, integrity, defence, public order); Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, r. 16 (reasons to be recorded); Shreya Singhal v. Union of India, (2015) 5 SCC 1 (constitutional limits on content blocking).
[7] Constitution of India, Art. 14 (equality before law; prohibition of arbitrary state action); E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, para 85 (arbitrariness as antithesis of equality); Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (non-arbitrariness as a component of Articles 14 and 21).
[8] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, paras 87–89 (publication of orders as precondition to judicial review under Arts. 32 and 226); Constitution of India, Arts. 32 (SC jurisdiction), 226 (HC jurisdiction); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (constitutional courts’ power of judicial review as part of basic structure).
[9] Manipur High Court orders in WP(C) Nos. 812/2023, 845/2023 (arising from 2023 Manipur ethnic violence); Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, para 96 (directions to State authorities); Access Now & Internet Freedom Foundation, “India: Internet Shutdowns in Manipur,” Litigation Tracker (2023).
[10] Internet Freedom Foundation, “In 2024, Haryana and Manipur Turned Off Internet for Nearly 1700 Hours,” IFF Blog (January 2025); Software Freedom Law Centre, Shutdown Tracker Optimisation Project (STOP) India Report 2024 (Haryana recorded highest shutdown hours among states in 2024).
[11] Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453 (Special Committee constituted to review 2G restriction); Constitution of India, Arts. 19(1)(a), 19(1)(g), 21 (rights to expression, trade, and life invoked by petitioners).
[12] Faheema Shirin R.K. v. State of Kerala, 2019 SCC OnLine Ker 2978 (Kerala HC: internet access as component of right to privacy and education under Art. 21); Constitution of India, Art. 21 (right to life and personal liberty); followed and distinguished in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, para 27.