Internet Shutdowns, Content-Related Requests and Decisions
Case of OOO Flavus and Others v. Russia
Closed Expands Expression
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The High Court of Calcutta, India stayed the operation of an internet shutdown order issued by the Indian State of West Bengal. An internet freedom activist filed a writ petition challenging the internet shutdown order on the grounds that it violated Supreme Court of India guidelines on internet shutdowns and had been unlawfully issued. The Court held that the internet shutdown order had been passed without the authority of law, failed to satisfy the test of proportionality and did not contain reasons for suspending internet services.
This post is adapted for our database based on a blog by The Internet Freedom Foundation and is reproduced here with permission and thanks.
On March 3, 2022, the Home & Hill Affairs, Department of State of West Bengal issued a Suspension Order directing the suspension of internet services for 8 days: from March 7, 2022 to March 9, 2022; from March 11, 2022 to March 12, 2022; and from March 14, 2022 to March 16, 2022. The Suspension Order was issued because the intelligence reports received by the government suggested that the internet may be used for “unlawful activities” on the aforementioned days. The Suspension Order suspended all forms of the internet, including broadband, leased line, mobile data, and 2G/3G/4G. The timeline of the internet shutdown coincided strongly with the schedule of the Madhyamik Pariksha (Secondary Examination), 2022 for Class 10 students.
Ashlesh Birader, a Digital Literacy Fellow at the Internet Freedom Foundation (Charitable Trust) filed a writ petition before the High Court of Calcutta challenging the constitutionality of the order.
Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj delivered the judgment of the High Court. The central issue for the Court’s determination was whether the Suspension Order was lawful.
Birader argued that the Suspension Order unlawfully suspended the internet services in various parts of the state. He argued that the Suspension Order violated Article 14, Article 19(1)(a), and Article 21 of the Indian Constitution because it is arbitrary, unreasonable, and restricts freedom of expression, and that it did not meet the three-prong proportionality test and did not constitute a legitimate aim. Biradar submitted that the suspension order violated Section 5(2) of the Telegraph Act and Telecom Suspension Rules which allows the state to restrict the transmission of messages on “the occurrence of any public emergency or in the interest of the public safety.” Birader argued that the Suspension Order has not been issued because of a public emergency or on account of public safety, which are the prerequisites for suspending internet services. He referred to the Supreme Court guidelines issued in Anuradha Bhasin v Union of India in which the Supreme Court identified access to the internet as a crucial component under Article 19 (freedom of expression) of the Indian Constitution, and submitted that the Suspension Order violated these guidelines. The Supreme Court had held that any restriction on internet services must be lawful, necessary and proportionate and any restriction order must not be issued under Section 144 of the Criminal Procedure Code (CrPC). Biradar submitted that this Suspension Order had been issued under Section 144 of the CrPC which was therefore not permissible. In the alternative, Biradar submitted that, if it was permissible to issue the order under Section 144, it had nevertheless been issued by an officer not empowered to issue such an order under that provision. In addition, he submitted that the Suspension Order did not comply with other Supreme Court’s directions as it had not been published anywhere by the West Bengal Government.
The Advocate General for the State of West Bengal defended the Suspension Order and argued that it was limited in its scope and was proportionate and necessary. The Advocate General submitted that the Review Committee had duly approved the Suspension Order in terms of Rule 2(6) of the Telecom Suspension Rules and that it was issued to prevent cheating in sensitive areas during the Madhaymik Examination, 2022. He argued that the Suspension Order satisfied the test of proportionality as there was no restriction imposed on voice calls, SMS and newspaper communication and it was confined only to data-related messages or calls for transmission in only some sensitive areas of seven districts of the State.
The Court acknowledged Biradar’s submission that the suspension of internet service by the Suspension Order has affected banking transactions and various other business activities including online teaching classes in the area concerned. It also recognized that other effective measures could be taken by the State to prevent the use of unfair means and cheating in the Madhyamik Examination without affecting the public at large. The Court held that the Suspension Order issued under Section 144 of the CrPC had been passed without the authority of law and without taking note of the requirement of Section 5(2) of the Telegraph Act and the Telecom Suspension Rules. The Court found that the Suspension Order was issued by an authority not empowered to do so by Section 144 of the CrPC and that it did not disclose any reasonable justification on why the internet needs to be suspended.
The Court held that the Suspension order violated the directions of the Supreme Court in the case of Anuradha Bhasin and the People’s Union For Civil Liberties v. Union of India (1997) 1 SCC 301. The Court found that the State had various other means available to prevent the use of unfair means in the Madhyamik Examination, and concluded that all state authorities are bound by both the Telecom Suspension Rules that regulate how telecom services are to be suspended by governments as well as the directions of the Supreme Court in Anuradha Bhasin.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Given that India imposes more internet shutdowns than most countries, the High Court’s emphasis that the Telecom Suspension Rules and the Supreme Court directions in Anuradha Basin v. Union of India are binding and must be complied with is a strong statement. The judgment will pave the way for continued advocacy with states – including West Bengal – requiring them to comply with the guidelines of the Supreme Court in Anuradha Bhasin v. Union of India.
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