Access to Public Information, Internet Shutdowns
Vyas v. State of Gujarat
Order Handed Down Expands Expression
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On November 28, 2018, the Rajasthan High Court observed that ‘public examinations’ can not be categorised as a public emergency under Article 19 of the Constitution of India for imposing an internet suspension order. Dhirendra Singh filed a petition challenging the constitutionality of the Suspension order on the grounds of violation of Article 14 (Equality), Article 19 (Freedom of Expression) and Article 21 (Right to life) of the Constitution. The High Court dismissed the petition after the Government of Rajasthan’s categorical stand on not suspending internet services during the competitive examination.
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 July 12, 2018, the Government of Rajasthan through the Home Department issued the Suspension Order directing the suspension of internet services for a day in the State of Rajasthan. The Suspension Order suspended all forms of the internet, i.e. broadband, leased line, mobile data, 2G/3G/4G etc. The stated purpose of the Suspension Order was to prevent ‘undesirable activities’ and to maintain ‘public order’ during governmental Police Recruitment Examinations by the use of mobile phones & internet technology and to facilitate free, fair and transparent conduct of the written examination. Earlier, on February 10, 2018, the Government of Rajasthan issued a Suspension Order restricting the internet while conducting Rajasthan Eligibility Examination Teachers.
Dhirendra, a local resident of Jodhpur, filed a petition before the High Court of Rajasthan challenging the constitutionality of the orders.
Justice Sangeet Lodha and Justice Dinesh Mehta of the High Court of Rajasthan delivered the Order.
The Petitioner contended that due to arbitrary and unreasonable internet shutdown, he himself and the public at large suffered a huge inconvenience in terms of access to basic necessities. Imposing a ban under the pretext of conducting an examination can’t be justified on the reasoning of ‘undesirable activities and maintaining ‘public order’. Subsequently, conducting an examination doesn’t fall within the ambit of reasonable restriction under Article 19 (Freedom of Speech) of the Constitution of India. These internet shutdowns not only violate the right to freedom of expression but also violate the right to receive information and be informed. Moreover, the Petitioner contended that imposing a ban on telecom internet services had infringed Article 21 (Right to life) of the Indian Constitution because access to basic rights including the right to livelihood, and the right to health was hampered. The Suspension Order issued under Rule 6 of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2012 (‘the Rules’) was ex facie illegal and arbitrary as the Rules itself doesn’t allow a ban on telecom internet services on account of preventing the ‘undesirable activities’ and ‘pubic order’. As per the Rules, the power to impose a ban on the telecom internet services can only be evoked on two grounds i.e. ‘Public emergency’ or ‘Public safety’.
The Petitioner concluded the contention by stating that the objective of the Suspension Order could have been undermined by other communication means that were still operational including broadband, SMS and call services. There was no nexus between the arbitrary act of the State imposing a ban on the telecom internet services and there is no intelligible differentia by discriminating between telecom internet services and all other telecom services which are bad in the eyes of law. Hence, such Suspension Order violates Article 14 (Equality) of the Constitution.
The State Government a reply to the petition, contended that they had taken due care of all the facts and imposed a minimal restriction based on sufficient reasons for conducting exams without any cheating. The State contended that there was no blanket ban on internet services and it was only a suspension of Telecom Services by internet service providers in compliance with the Rules. It was further contended that the Petitioner failed to produce any documentary evidence to explain the amount of loss that has been caused and how it infringes the fundamental rights of the public at large. The State concluded, that even though the event of ‘conducting an exam’ does not fall within the purview of reasonable restrictions in Article 19(2), however, it can qualify as ‘public order’ for imposing reasonable restrictions. The expression ‘public order’ includes ‘public tranquillity’ that perceives a state, free from disturbances, a state of peace and quiet.
The Court referred to the additional affidavit issued by the Special Secretary addressed to the Divisional Commissioner of various Division directing that no order suspending the internet services shall be issued in future during the examinations. The Court, without determining whether the Suspension Orders were constitutional or not, held the petition to be infructuous.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court’s order is the result of a concession of the State Government. Even though the order is not an extensively reasoned judicial opinion, it is a victory nonetheless. Recently, the Udaipur Chambers of Commerce and Industry, and Hotel Association, Udaipur approached the Rajasthan High Court with a similar petition pointing out that the State Government has been consistently violating the law. Since 2020, the Udaipur Divisional Commissioner has issued at least 26 internet suspension orders, which have not been published and were obtained only through Right to Information applications. The case is still pending at the High Court.
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