Introduction
On 10 January 2020, the Supreme Court of India delivered a judgment of considerable doctrinal ambition. In Anuradha Bhasin v. Union of India, a three-judge bench held that internet access, as a vehicle for the exercise of freedom of speech and expression and the freedom to practise any profession or carry on any occupation, trade, or business, is protected under Article 19(1)(a) and Article 19(1)(g) of the Constitution. The Court further held that suspension orders under the Telecom Suspension Rules 2017 must be proportionate, must be for the shortest period necessary, must be published so as to enable affected persons to challenge them, and must be subject to periodic review by a Review Committee. These are not vague exhortations; they are specific, operational legal requirements. Yet the five years since Anuradha Bhasin have demonstrated that the distance between judicial declaration and state practice in this domain is vast. India has consistently led the world in the number of internet shutdowns recorded annually, and the executive mechanisms through which those shutdowns are ordered have been only marginally reformed. This article examines why the proportionality standard articulated in Anuradha Bhasin has failed to constrain state practice, what structural features of the existing framework enable this failure, and what reforms are required to give the constitutional guarantee genuine operational content.
Legal Framework
The Telecom Suspension Rules 2017, framed under Section 7 of the Indian Telegraph Act 1885, constitute the primary statutory framework for internet and telecom shutdowns. Rule 2 authorises the Secretary to the Ministry of Home Affairs at the Centre, or the Secretary to the Home Department at the state level, to issue directions for suspending telecom services, including internet services, in public emergency or in the interest of public safety. Rule 2(2) requires that a copy of every such direction be placed before a Review Committee within five working days. Rule 6 constitutes the Review Committees: at the central level, comprising the Cabinet Secretary, the Law Secretary, and the Secretary (Telecom), and at the state level, comprising the Chief Secretary, the Law Secretary, and another senior state official. The Committee is required to record its findings as to whether the direction meets the standard prescribed under Rule 2(1) and, if not, to revoke the direction.
The constitutional framework within which these rules operate was elaborated in Anuradha Bhasin through the proportionality doctrine drawn from the privacy judgment in K.S. Puttaswamy v. Union of India (2017). The Court identified four components of proportionality: a legitimate aim, a rational connection between the means and the aim, necessity (the means must be the least restrictive among alternatives reasonably available), and a balance between the severity of the rights restriction and the importance of the aim pursued. The Court held that internet shutdowns affecting entire geographic regions for indefinite periods were unlikely to satisfy the necessity and balancing components of this test.
The judgment also placed a specific obligation of publication on the government: suspension orders must be published or made available to affected persons so that they may challenge them before courts. This requirement directly addresses the structural information asymmetry that had, until 2020, prevented effective judicial review of shutdowns: if the orders are not available, affected persons cannot specify in their petitions exactly what legal requirements the orders fail to satisfy.
Judicial Developments
The litigation history following Anuradha Bhasin reveals a pattern of procedural compliance accompanied by substantive non-compliance. The Foundation for Media Professionals filed a contempt petition before the Supreme Court in 2020, alleging that the Jammu and Kashmir administration had failed to implement the judgment’s directions by continuing broadband suspension without published orders and without genuine Review Committee functioning. The Court’s response was notably restrained: rather than finding contempt or granting specific directions, it constituted a Special Committee to examine the matter and asked the government to restore high-speed internet on a restricted basis. This approach, while diplomatically pragmatic, signalled to state governments that the costs of non-compliance with Anuradha Bhasin were low.
The Jammu and Kashmir administration did progressively restore internet services between 2020 and 2022, but the restoration was phased and conditional in ways that the published orders did not fully explain, making independent proportionality assessment by courts difficult. The Review Committee mechanism, as documented by researchers and civil society organisations, has functioned as a post-hoc ratification exercise rather than an independent check: committees dominated by senior government officials reviewing decisions made by their own departments are structurally unlikely to find those decisions disproportionate.
The Manipur internet shutdown of 2023 is the most dramatic recent test case. Following the ethnic conflict that began in May 2023, internet services in Manipur were suspended for extended periods through multiple successive orders. The total cumulative suspension ran to several months. The Manipur High Court was petitioned by journalists and civil society organisations and directed the state government to restore services and comply with the published-order requirement. The government provided some restoration of internet access at lower speeds while retaining restrictions on social media and certain communication platforms. The High Court’s engagement with the proportionality question was limited: it accepted the government’s broad national security justification without conducting the structured proportionality analysis that Anuradha Bhasin requires. The Supreme Court was not petitioned in the Manipur matter, a significant absence given the scale of the restriction.
Contemporary Issues and Analysis
The fundamental structural problem with the post-Anuradha Bhasin landscape is that the proportionality standard, as formulated by the Court, requires the executive to make a legally adequate record at the time of issuing a shutdown order. The Review Committee must then examine whether that record supports the conclusion that a total shutdown is necessary, rather than more targeted restrictions. In practice, state governments have learned to produce orders that use the required statutory language, citing public emergency and public safety, without providing the factual specificity that genuine proportionality review would require.
The information asymmetry between the state and the petitioner remains severe despite the publication requirement. When a government publishes a shutdown order, it typically contains the statutory grounds and the duration but does not disclose the intelligence inputs or specific factual basis for the assessment that a shutdown is necessary. The petitioner, seeking judicial review, must therefore challenge the adequacy of the stated grounds without access to the underlying evidence, while the government can rely on national security privilege to resist disclosure of the actual basis for its decision. This creates an adversarial imbalance that systematically favours government non-disclosure.
The Access Now Digital Rights organisation, which maintains a global tracker of internet shutdowns, recorded India as the world’s largest executor of internet shutdowns every year from 2016 through 2023, with the count running to hundreds of individual shutdown instances annually. The geographic distribution of shutdowns shows that the burden falls disproportionately on Jammu and Kashmir, the northeastern states, and Rajasthan, with particular concentration during elections, protests, and communal disturbances. This pattern is constitutionally relevant: it suggests that shutdowns are being used not merely as emergency security measures but as routine governance tools deployed during politically sensitive periods.
The doctrinal consequence of this gap between law and practice is a degradation of the underlying constitutional right. Article 19(1)(a) and Article 19(1)(g) do not merely guarantee the formal existence of internet access as a right; they guarantee its actual enjoyment subject only to restrictions that satisfy constitutional standards. If state practice produces restrictions that routinely fail those standards and judicial enforcement is too weak to correct them, the constitutional guarantee is hollow.
Comparative and International Perspective
The European Court of Human Rights’ decision in Yildirim v. Turkey (2012) provides the leading international judicial precedent on internet access and human rights. The Court held that a blanket blocking order targeting an entire platform in order to prevent access to specific content violated Article 10 of the European Convention on Human Rights because it employed a measure broader than necessary to achieve the legitimate aim and because it was not accompanied by adequate procedural safeguards against abuse. The principle that internet restrictions must be targeted rather than blanket, and must be subject to independent judicial oversight, has been consistently affirmed by the ECtHR in subsequent decisions.
The United Nations Human Rights Council’s 2016 resolution affirmed that the same rights that people have offline must also be protected online, and specifically condemned measures that intentionally prevent or disrupt access to or dissemination of information online. While UN Human Rights Council resolutions are not legally binding under international law, they constitute authoritative interpretive guidance for constitutional courts engaging with the scope of freedom of expression in the digital age. Indian courts adjudicating shutdown cases have rarely engaged with this international framework.
The Joint Declaration on Freedom of Expression and the Internet issued by the UN Special Rapporteur on Freedom of Opinion and Expression, together with regional freedom of expression rapporteurs, has explicitly stated that internet shutdowns can never be justified by reference to public order or national security given their indiscriminate effect, and that any restriction on internet access must be provided by law, pursue a legitimate aim, and be necessary and proportionate. This categorical position is stronger than Anuradha Bhasin’s framework, which permits shutdowns subject to proportionality, but it underscores the international consensus that the Indian state is repeatedly flouting.
Practical and Policy Implications
The economic cost of internet shutdowns has been extensively documented. The Indian Council for Research on International Economic Relations estimated in 2020 that India had lost over USD 3 billion to internet shutdowns between 2012 and 2020. Subsequent analyses have continued to show substantial economic disruption, with small businesses, agricultural commodity traders, students accessing online education, and healthcare providers reliant on digital platforms bearing disproportionate costs. The fact that these economic harms fall most heavily on populations that are already economically marginalised, in rural areas, in conflict-affected regions, in states with low digital infrastructure, compounds the constitutional inequality dimension.
Journalists, the direct petitioners in Anuradha Bhasin, have documented the practical collapse of press freedom during shutdown periods. The inability to transmit reports, access sources, or verify information in real time reduces journalism to delayed and partial coverage during precisely those moments, elections, protests, and communal disturbances, when accurate and timely information is most constitutionally important. The freedom of the press, while not separately guaranteed in the Constitution, is consistently held by the Supreme Court to be implicit in Article 19(1)(a).
Suggestions and Reforms
The most important reform would be the replacement of the Telecom Suspension Rules 2017 with a Telecom Suspension Act passed by Parliament, which would specify the criteria for shutdown orders with statutory precision, provide for mandatory prior judicial authorisation except in genuine emergencies requiring immediate action, and require that even emergency orders receive independent judicial confirmation within 24 hours of issuance. Prior judicial oversight, rather than post-hoc Review Committee ratification, is the minimum standard consistent with the proportionality requirement articulated in Anuradha Bhasin.
The Supreme Court should clarify, in appropriate proceedings, that the Review Committee mechanism as currently constituted does not satisfy the proportionality review requirement because it lacks institutional independence from the executive. An independent review body, composed of retired judges or persons with constitutional law expertise, would provide the separation from the executive necessary for genuine oversight.
Courts adjudicating shutdown petitions should adopt the structured proportionality analysis explicitly: first identifying the stated aim, then requiring the government to demonstrate on the record that the means are connected to the aim, necessary rather than merely convenient, and proportionate in duration and geographic scope. The burden of demonstrating necessity and proportionality should lie on the government, not on the petitioner to disprove. This is consistent with both Anuradha Bhasin and the general principle that the burden of justifying fundamental rights restrictions lies with the restricting authority.
Parliament should also require the systematic publication of shutdown statistics, including duration, geographic coverage, stated grounds, Review Committee findings, and restoration dates, in an annual report to Parliament. Transparency of this kind would enable legislative oversight and academic assessment of the pattern of shutdowns in a way that ad hoc litigation cannot provide.
Conclusion
Anuradha Bhasin v. Union of India articulated a constitutionally significant and doctrinally coherent standard for the review of internet shutdowns. The standard is proportionality, and its requirements are specific: publication, necessity, adequate duration limits, and independent review. Five years after that judgment, India remains the world’s leading executor of internet shutdowns, state governments continue to use shutdowns as routine governance tools rather than exceptional emergency measures, and the Review Committee mechanism provides no meaningful check on executive overreach. The gap between the constitutional standard and state practice is not a failure of constitutional law; it is a failure of institutional design and judicial enforcement. Closing that gap requires legislative reform to create a statutory framework with independent judicial oversight, judicial willingness to apply the proportionality standard with rigour rather than deference, and a political culture that treats internet access as the constitutional right it now formally is. Until these conditions are met, the constitutional guarantee recognised in Anuradha Bhasin will remain, for the hundreds of thousands of people affected by shutdowns each year, a right more honoured in declaration than in practice.
