Access to Public Information, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
Closed Contracts Expression
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In late August 2015, the State of Gujarat blocked Internet access on mobile phones for one week after widespread public protests; Gujarat issued the order under Section 144 of the Code of Criminal Procedure, which permits the government to prevent unlawful assembly when unrest is expected. Gaurav Sureshebai Vyas challenged the action at the High Court of Gujarat, arguing that the state lacked authority to block Internet access under Section 144 and requested that the Court issue a writ to permanently restrain the state’s ability to block access to the Internet as it violated Articles 14, 19, and 21 of the Constitution. The Court not only found that the State was justified in issuing the order, but also that the restriction was sufficiently minimal so as to avoid violating the petitioner’s right to free expression.
Following months of public protests and agitations, the Gujarat government decided to shutdown mobile Internet access in the state for a week. The government, however, did not restrict broadband Internet access. Petitioner Gaurav Sureshbhai Vyas later filed a public interest litigation in the High Court of Gujarat, seeking a declaration that the government lacked authority to block Internet by resorting to Section 144 of the Code of Criminal Procedure. Rather, the only power available to do so is under Section 69A of the Information Technology Act of 2000. Section 144 empowers state government magistrates to issue an immediate order, directing “any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such [m]agistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.”
Under Section 69A of the Information Technology Act, the central government is given the authority to direct any government agency or intermediary to block public from accessing to any information transmitted, stored or received through computer, if it is necessary “in the interest of sovereignty and integrity of India, defen[s]e of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offen[s]e.”
The petitioner also sought the High Court to issue a writ, permanently restraining the State of Gujarat from imposing complete or partial ban on Internet access through mobile phones and broadband services by resorting its 2015 order because it violates Articles 14, 19, and 21 of the Constitution. The state government, however, contended that Section 144 of the Code of Criminal Procedure gave a valid authority to temporarily block Internet through mobile phones as it was necessary to maintain public order and to prevent further riot.
High Court Justices Jayant Patel and N.V. Anjaria delivered the opinion.
First, the Court found that there was nothing illegitimate in the application of Section 144 of the Code of Criminal Procedure to initiate an order blocking Internet access through mobile phone services in Gujarat. It held that the public disturbance during the relevant period gave the state government “sufficient” justification to prevent further rioting through temporary ban of Internet; it disagreed with the petitioner in considering it as a complete ban, reasoning that the public access to Internet through broadband and Wi-Fi facilities was permitted or rather was not blocked.
Furthermore, the Court held that “Section 69A of [the Information Technology Act] may in a given case also be exercised for blocking certain websites, whereas under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of [I]nternet access.” [para. 9]
Second, the Court found the application of Internet shutdown in the circumstances to be justified. It gave deference to the decision of the authorities in finding the most appropriate mechanism for controlling the situation. Additionally, the Court reasoned that even if social media websites are not required to be blocked independently or completely, but if it is a “possibly … more effective approach found by the competent authority” [para. 11] then it may be justified.
Accordingly, the Court dismissed the petition.
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