A challenge to internet shutdown rules: Gauhati HC agrees to hear IFF's application

tl;dr

IFF filed an intervention application in proceedings challenging the constitutionality of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 issued under the Indian Telegraph Act, 1885. These rules empower the Union and State Governments to suspend internet services. But these rules stand on a tenuous legal footing - they confer unbridled powers to governments, and they are beyond the scope, ambit and intent of Sections 5(2) and 7 of the Telegraph Act. On 23rd December 2021, the Gauhati High Court has agreed to hear our application after listening to submissions from our counsel, Mr Anubhab Atreya.

Background

On 11th December 2019, the Parliament passed the Citizenship (Amendment) Act, 2019. The enactment was met with widespread opposition across the country. In response to the opposition, the State of Assam suspended mobile internet services for a week. Several individuals approached the Gauhati High Court questioning the legality of the suspension. On 19th December 2019, the Gauhati High Court directed the State of Assam to restore mobile internet services as State Government had failed to demonstrate to the Court that the law and order situation was such that an internet suspension was necessary. On 20th February 2020, the Gauhati High Court dismissed review petitions filed against the order dated 19th December 2019 and disposed of the petitions challenging the suspension of mobile internet services.

However, a petition filed by Mr Ajit Bhuyan also challenged the constitutionality of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘2017 Rules’). In his petition, he argued that the 2017 Rules violate the right to speech and access information as they confer unbridled power on governments to suspend internet services. He also argued that the 2017 Rules are beyond the scope, ambit and intent of Sections 5(2) and 7 of the Indian Telegraph Act, 1885 (‘Telegraph Act’).  The purpose of Section 5(2) of the Telegraph Act was to permit the government to restrict/intercept telegraph messages sent from one person to another, and not en-masse suspension of internet services. Moreover, the Telegraph Act is a statute from the 19th century and predates the internet as we know it today by almost 100 years.

Since Mr Bhuyan’s petition was not restricted to the internet suspension issued by the State of Assam in December 2019, on 20th February 2020 the Gauhati High Court decided to hear the petition and permitted the State of Assam and the Union Government to reply to it.

IFF’s intervention application

In June 2020, IFF filed an intervention application in the proceedings initiated by Mr Bhuyan, to assist the Gauhati High Court in determining the constitutionality of the 2017 Rules. In the intervention application, we pointed out, firstly, that the constitutional validity of the 2017 Rules has not been considered by the courts. In fact, the Supreme Court in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637 interpreted the 2017 Rules but stated that it was not concerned with its constitutionality since the parties therein had not canvassed arguments on the same (Paragraph 84).

Secondly, we provided details regarding IFF and stated that one of the core objectives of IFF was to advocate and defend freedom of speech and expression, and access to information in the digital era. We also listed the cases where IFF had provided legal assistance to other individuals/organizations and those where IFF had previously intervened. We provided these details to the Gauhati High Court to demonstrate that IFF has long-standing expertise in freedom of speech, and has responsibly engaged with authorities on the issue of internet shutdowns.

Lastly, we argued that the 2017 Rules are unconstitutional for the following reasons:

1. Permit en-masse blanket suspension: The 2017 Rules permit governments to issue blanket internet suspension orders, which do not distinguish between lawful speech (discussion, debate and advocacy) and unlawful speech (incitement to violence). As such, they violate the right to speech, the right to access information and even the right to seek judicial remedies.
2. Procedural deficiencies: The 2017 Rules permit a secretary-level officer to suspend internet services without any judicial oversight over their decision making. Thus, the lack of judicial oversight makes the 2017 Rules highly susceptible to arbitrary use.
3. Counter-productive: The 2017 Rules empower suspension of internet services even though studies have shown that such suspensions do not improve law and order situations. In fact, they incentivise violent collective action which requires less communication, coordination and planning than peaceful protests.
4. Economic impact: Internet suspensions are costly for the economy. In 2020 alone, India faced losses of over Rs. 20,973 Crore. They also prevent individuals from carrying out their business, trade or occupation which is a fundamental right guaranteed by the Constitution.

Apart from the above, we submitted that IFF would assist the Court through the production of empirical studies and expert affidavits related to effectiveness, economic cost, legal permissibility and technical feasibility of internet shutdowns. We also stated that no prejudice would be caused to the parties if IFF is permitted to intervene.

Proceedings on 23rd December 2021

IFF’s application was listed for consideration on 23rd December 2021, before a bench led by Justice Kotiswar Singh of the Gauhati High Court. Mr Anubhab Atreya appeared on behalf of IFF. After briefly listening to submissions by Mr Atreya, the court agreed to hear the application in detail on another date. The case will now be taken up in due course depending on the COVID-19 situation prevailing in the State of Assam.

We are thankful to Mr Anubhab Atreya for appearing on behalf of IFF before the Gauhati High Court. We are also thankful to Ms Vrinda Bhandari, Ms Sanjana Srikumar and Ms Devdutta Mukhopadhyay for drafting the intervention application and to Mr Sanjeeb Kr. Deka for filing it.

We look forward to assisting the Gauhati High Court on this important question of law which has a tremendous impact on Indians.

Important Documents

1. A public copy of IFF’s intervention application in Ajit Bhuyan vs State of Assam and Others PIL No. 79 of 2019 (link)