In a hearing of the Internet Freedom Foundation’s (IFF) petition, the Calcutta High Court on March 10 stayed the West Bengal government’s order to suspend internet across multiple districts in the state. The petition was filed by IFF staffer Ashlesh Biradar, challenging the shutdown order in the public interest.
The High Court observed that the order was not issued by the right person as per the law i.e. Section 144 Code of Criminal Procedure (CrPc) under which the order was issued, and insufficient reasoning – both in the order and the West Bengal review committee’s report submitted to the Court later, according to a LiveLaw report,
“This is the first stay order in India for an internet shutdown,” Apar Gupta, executive director at the IFF said in a tweet following the High Court’s decision. Citing intelligence inputs about unlawful activities, the West Bengal government had ordered the internet shutdown across multiple days in the districts between 11:00 AM to 3:15 PM- timings which coincide with the Class X board exams being held in the state.
Internet shutdowns in India have unfortunately become a regular occurrence, causing a loss of $582.2 million in 2021 which saw 1,157 hours of the internet being blocked in the country. The Supreme Court of India’s verdict in Anuradha Bhasin v Union of India 2020, declared that access to the internet enjoyed constitutional protection as it was a medium to exercise the right to freedom of speech and expression as well as the right to practice a trade or profession.
What did the petition seek?
In the petition, the HC is asked to stay the present order and restore internet services in the affected districts. It also asked that the West Bengal Home and Hill affairs department, its men, assignees, etc., be restricted from taking any further actions to give effect to the shutdown order.
Apart from this, it asked the HC to direct the West Bengal government to:
- Issue suspension orders only in accordance with Temporary Suspension of Telecom Services (Amendment) Rules, 2020 and not issue under Section 144 CrPc,
- Issue such orders in compliance with the Anuradha Bhasin judgement such as by making them public by circulating them in a newspaper, putting them on its Twitter handle (@Homebengal) within 24 hours of issuing them,
- Publish findings of the review committee, formed as per the telecom suspension rules, for each instance of internet shutdown ordered after the 2020 SC judgement.
Order in violation of Anuradha Bhasin judgement, claims petition
The petition stated that the shutdown order violates the SC judgement in the following manner:
Orders required to be passed under Telecom Suspension rules: The 2020 judgement laid down that internet shutdown orders have to be issued only under the telecom suspension rules and not CrPc, the petition said. The West Bengal government had passed the order under Section 144 CrPc and added that it was in compliance with the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 and Temporary Suspension of Telecom Services (Amendment) Rules, 2020.
Not in line with the definitions of public order, safety, or emergency: In the 2020 judgement, the SC held that ’emergency’ under the Telegraph Act, 1885, was different from everyday emergencies and meant serious and sometimes widespread risk of injury or harm to members of the public or the destruction of or severe damage to property, the petition said. According to the Telegraph Act 1885 – under which the telecom suspension rules are enacted – internet suspensions are allowed in the interest of public safety, the occurrence of public emergency, the sovereignty of a state, prevention of incitement to offence, etc. The West Bengal government’s reasoning of preventing unlawful activities or generally for law and order does not fall under these stated reasons, the petition said.
It further illustrated this point in the following manner:
“The Hon’ble Supreme Court has explained the difference between ‘public order’ and ‘law and order’ by illustrating three concentric circles — law and order representing the largest circle within which is the next circle representing public order and the smallest circle representing security of the State. Therefore, an act may ‘affect law and order but not public order just as an act may affect public order but not the security of the State — for an act to affect public order it must affect the community or the public at large. In the same case, the Hon’ble Supreme Court also held that the maintenance of public order means prevention of disorder of a grave nature whereas maintenance of law and order means prevention of disorder of comparatively lesser gravity.” — IFF Petition
Order fails proportionality test laid down in the judgement: Internet shutdown orders also need to be proportional, according to the 2020 judgement. The petition described the tests for determining proportionality as follows:
- A measure restricting rights must have a legitimate goal,
- The restriction must be a suitable means of furthering the goal,
- There must not be any less restrictive but equally effective alternative,
- The measure must not have a disproportionate impact on the rights holder.
- No legitimate goal:
i) Since law and order are not legitimate purposes under the Telegraph Act, the petition said that WB order does not have a legitimate goal.
ii) The petition invoked the SC’s line in the Pegasus hearing where it said that ‘the State does not get a free pass every time the spectre of national security is raised’, to say that the order does not have a legitimate goal as it only mentions unspecified unlawful activities.
iii) Considering the close correlation between the timings of the shutdown and exams in the state, the petition said that the unlawful activities sought to prevent maybe cheating, paper leakage, etc., which are not permissible or even least restrictive grounds for an internet shutdown.
- Not a suitable means to achieve goal:
i) The WB order needs to specify the ‘unlawful activities’ it is trying to prevent as well as how the shutdown would prevent them, the petition argued, saying that the order suffers from a ‘non-application of mind’ without it.
ii) It also argued that given that the notification for Class X had been issued four months in advance, the government had enough time to put in place measures to prevent unwanted activities.
iii) The examinations were thus, not an unavoidable circumstance which the Telecom suspension rules have provisions for, the petition says.
- Not a reasonable restriction on rights: A less restrictive measure could have been used which did not impact the freedom of speech and expression and to practice trade or professions of the people of West Bengal, the petition said. It added that the right to education is also violated by the order as most classes currently take place online and that the order is ‘capricious, arbitrary, unreasonable and violates Article 14’ which guarantees equality before the law. Lastly, the right to life and liberty under Article 21 of the constitution is also violated by the order.
- Not proportionate to economic loss: The order does not justify the economic loss suffered by the public at large, as even people from other regions conducting business with offices or people residing in the affected areas will be impacted by the shutdown.
Order was not made public on social media and website: The judgement had asked that such shutdown orders be placed in public so that they may be challenged. However, the petition noted that in this case, the order was only accessible through ‘media reporting on social media’ and not on the website or social media handles of the government.
Unlawful orders have to be struck down: The petition said that according to the 2020 judgement, shutdown orders that are not in accordance with the law have to be struck down.
Additional Chief Secretary not authorised to issue such directions: Under Section 144 the district magistrate, sub-divisional magistrate, or any other executive magistrate especially empowered by the state government can pass such an order. Thus, even if passing it under Section 144 could be allowed, the petition argued that the Additional Chief Secretary who has undersigned the order, would not be the authorised person.
Standing Committee on IT flagged various issues with internet shutdowns
The Parliamentary Standing Committee on Information Technology, in its report on internet shutdowns, provided the following recommendations:
Maintaining a database: The Department of Telecommunications (DoT) and the Ministry of Home Affairs (MHA) should maintain a central database of all internet shutdown orders. This should contain additional information such as the number of times suspension has been imposed, reasons, duration, the decision of the competent authority, the decision of the Review Committees, and also whether any internet shutdown has been ordered by resorting to Section 144 of CrPC, etc.
Selective blocking: The committee recommended that services (like Facebook and WhatsApp) that can be used by terrorists/anti-social elements in times of crisis, be selectively blocked instead of complete internet shutdowns.
Curbing the use of CrPc: The passage of internet shutdown orders under Section 144 of the CrPc had been flagged, recommending that the DoT and the MHA monitor when states and union territories invoke the provision.
Recent internet shutdowns in India
While in the case of West Bengal, only two days of the shutdown could be observed before the High Court stayed the order, here are other recent internet shutdowns. The IFF’s petition will next be heard on April 6.
- The MHA ordered telecom operators to shut down internet services in Singhu, Tikri, and Ghazipur in January this year, for “maintaining public safety and averting public emergency” amid the farmers’ protest. Internet was suspended in these areas from 11 PM on January 29 to 11 pm on January 31. Telecom sources confirmed to MediaNama of having received the order from the Home Ministry.
- In February, the state government suspended mobile and broadband internet in multiple districts of Jharkhand with no official order or reasoning.
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