Content Regulation / Censorship, National Security, Public Order
Bayar v. Turkey
In Progress Expands Expression
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The Gauhati High Court ordered the immediate restoration of mobile internet services in the State of Assam on the ground there was no longer evidence of sufficient threats to public order to justify the restriction. The State of Assam had suspended mobile and broadband internet on December 11, 2019 in response to protests and an outbreak of violence related to the controversial amended Citizenship Act. Despite a return to relative social calm, a lifting of the curfew and a restoration of broadband services by December 17th, mobile internet services remained suspended. The Court recognized that in given and specific situations, the law permits suspension, but that conditions must be continually reassessed and services restored as soon as the situation permits. The Court made particular note of the role internet services play in daily life and that such suspensions bring “life to a grinding halt.” Legal arguments related to the power and jurisdiction of the state authorities to issue Notifications under section 5(2) of the Indian Telegraph Act, 1885 to suspend internet services would be addressed when the case was heard on the merits.
Advocates Banashree Gogoi, Deva Kanya Doley, and Randeep Sharma and journalist Ajit kr. Bhuyan (Petitioners) brought four Public Interest Litigations (PILs) challenging Notifications by the Government of Assam which suspended mobile and broadband internet on December 11, 2019. The suspension was ordered in the wake of protests and an outbreak of violence related to the amended Citizenship Act. Due to concern over a further breakdown of law and order and threats to public safety, the Government of Assam invoked provisions of section 5(2) of the Indian Telegraph Act, 1885, read with the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 to prohibit Mobile Internet/Data Service of all Mobile Service Providers in ten districts of Assam for 24 hours, which was later extended and then expanded to the entire state. Restrictions on broadband internet were eventually relaxed, but the suspension of mobile internet service remained.
The respondents included the Secretary to the Government of India, the Ministry of Home Department and Political Affairs; the Ministry of Telecommunication; the Ministry of Information and Technology; the Government of Assam; the Director General of Police; and the Commissioner of Police.
Manojit Bhuyan, J. delivered the ruling of the Court. The Court comprised the duo of Honourable Justices Manojit Bhuyan and Soumitra Saikia.
The main issue before the Court was whether the State had sufficient evidence to justify the continued suspension of mobile internet services. The Court set aside arguments of the parties with regard to the power and jurisdiction of the state authorities to issue Notifications under section 5(2) of the Indian Telegraph Act, 1885, as well as the other legal issues raised, as they would require deeper consideration when the four (4) PILs would be later heard exclusively on the merits.
The Court began by recalling its order dated 17/12/2019 in respect to case no. PIL 78/2019 where it observed that despite a return to normal conditions (i.e. no outbreaks of violence or traffic disruptions) within Assam, the State had not re-evaluated the situation and the ongoing suspension was “causing freeze in the entire functioning in the city, and in the State.” [p. 5] For instance, the electricity supply had been inadvertently cut off from houses with prepaid meters that relied on the internet, the courts could not access cause lists to perform their work and business could not be transacted. In that case, the Court observed that the curfew been relaxed in a phased manner and broadband had been restored but mobile internet remained suspended despite the detrimental effects on the functioning of the State. While the “maintenance of law and order” took primacy, the Court recommended restoring mobile internet during the afternoon hours and directed the respondents to place on record evidence to justify any continued suspension.
Despite the Court’s above referenced order, mobile internet had not been restored. The Petitioners argued that there was no justification for the continuing of the suspension. They reiterated that Broadband Services had been restored and the curfew was lifted, but that the State had not conducted any review to assess lingering threats to public order and that the wording of the subsequent Notifications did not account for the return to peaceful social conditions. They further contended that the term “law and order” was alien to section 5(2) of the Act; citing the Supreme Court of India’s case of Shreya Singhal V. Union Of India, (2015) 5 SCC 1 for the proposition that the expressions “public order” and “law and order” connote different meanings.
Conversely, counsel for the Respondents referenced the affidavit dated 19/12/2019 to argue that the Notifications provided adequate justification for the continued suspension of Mobile Internet Service, despite the restoration of Broadband Internet Service. Counsel specifically made reference to paragraph 15 of the affidavit to submit that a Review Meeting of the State authorities took place during the evening hours of 18/12/2019 and that the inputs received from various intelligence agencies led to a unanimous decision taken to continue with the suspension of the Mobile Internet Service and bulk SMS for another 24 hours in the interest of public safety. By way of evidence, Counsel produced a message received from the Director, IB, New Delhi which alerted the police to remain vigilant and ensure maintenance of law and order as an intensification of protests was anticipated.
The Court in its final analysis noted the merits and demerits of internet services and held that no material was submitted by the Respondents to demonstrate or satisfy the court that there were sufficient disruptions, incidents of violence or a deterioration of law and order to justify the ongoing restrictions. The Court observed that:
[t]o say the least, with the advancement of science and technology, mobile internet services now plays a major role in the daily walks of life, so much so, shut-down of the mobile internet service virtually amounts to bringing life to a grinding halt. This is not to say that shut-down or suspension of service has to be viewed as an anathema. In given and specific situations, law permits suspension. But, would it be allowed to continue when the present situation do not justify its continuance; when the situation that prevailed on the date of issuance of the initial Notification is not shown to subsist as on date; when there has been an apparent shift to a state of normalcy on the lives of the citizens; when the period of acute public emergency which had necessitated suspension of mobile internet services have largely diminished…” [p. 8]
The Court accordingly made an interim order directing the Respondents, particularly the 5th respondent (the Additional Chief Secretary to the Government of Assam, Home and Political Department) to restore the mobile internet services of all Mobile Service Providers in the state of Assam, commencing by 1700 hours (5P.M) on 19/12/2019. The Court added that it would be open to the Respondents to take steps to curb and stop dissemination of explosive messages or videos on various social media platforms which may have a tendency to incite violence and disruptions affecting public safety on cogent and justifiable grounds and materials.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression particularly the freedom to receive and impart information without interference as it found that there was no justification for the State of Assam’s continued suspension of mobile internet services. This decision is notable as it emphasizes the established position of law that it is not just sufficient to restrict expression based on mere allegation or speculation of threat to public safety, public security or national security, but that the party seeking to restrict expression, including via the internet, must place sufficient materials before the court to establish such claim of threat to public security or safety in order to restrict expression or to continue to restrict expression as in the present case.
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