Tl;dr
Calcutta HC has stayed an internet shutdown order dated 03.03.2022 (‘Suspension Order’) issued by the State of West Bengal. The Suspension Order was challenged in a petition filed by Ashlesh Biradar on various grounds including that it was unlawfully issued under Section 144 of the Code of Criminal Procedure, 1973 (‘CrPC’). The Calcutta HC agreed with the submissions of the Petitioner and found it fit to pass an interim order. Senior Advocate Ranjan Bachawat represented the Petitioner and was briefed by R. Ginodia & Co. IFF provided legal support.
Why Should You Care
In a landmark decision, the Calcutta High Court (‘Calcutta HC’) has stayed the implementation of the order dated 03.03.2022 (‘Suspension Order’) suspending internet services. The Suspension Order was challenged in a petition filed by Ashlesh Biradar, on various grounds, including that it was unlawfully issued under Section 144 of the CrPC. The Calcutta HC was of the prima facie view that the Suspension Order was issued by an authority not empowered under CrPC, and that it did not contain reasons for suspending internet services. As a result of the order, the West Bengal Government cannot use the Suspension Order to suspend internet services on 11.03.2022, 12.03.2022, 14.03.2022, 15.03.2022 and 16.03.2022.
This is only the second time that a court in India has stayed an internet suspension order. As readers are aware, India imposes more internet shutdowns than most countries, and these orders are extremely detrimental to civil liberties as well as the economy. However, most shutdowns are not reviewed by courts because aggrieved parties are unable to reach courts in time, and the internet shutdown orders expire. In this case, the legal team, which included lawyers at IFF, worked day and night to approach the Calcutta HC in time. IFF devotes such time and effort in litigation against unlawful internet suspension orders only because of continued public support. The support has allowed us to speak truth to power, cutting across the political spectrum.
Proceedings before the Calcutta HC
On 03.03.2022, the State of West Bengal issued the Suspension Order directing suspension of internet services on 8 days, i.e., 07.03.2022, 08.03.2022, 09.03.2022, 11.03.2022, 12.03.2022, 14.03.2022, 15.03.2022 and 16.03.2022. This shutdown applied to all forms of the internet, i.e. broadband, leased line, mobile data, 2G/3G/4G etc. The Suspension Order was issued because of intelligence reports received by the government which suggested that the internet may be used for ‘unlawful activities’ on the aforementioned days. What is interesting to note is that the date and time during which internet suspension had been ordered coincided with the date and time of Madhyamik Pariksha (Secondary Examination), 2022 (‘Madhyamik Pariksha’). This suggested that the unlawful activities mentioned in the Suspension Order may be cheating or leaking of papers.
Mr Ashlesh Biradar, who is a digital literacy fellow at IFF and a resident of West Bengal, challenged the Suspension Order. The Calcutta HC extensively heard the challenge to the Suspension Order on 09.03.2022 and 10.03.2022. Senior Advocate Ranjan Bachawat represented the Petitioner and argued that the Suspension Order was illegal because:
- It did not contain any material facts to demonstrate why it was necessary to suspend internet services;
- It was issued under Section 144 of the CrPC even though it is not permissible to do so, according to the decision of the Supreme Court in Anuradha Bhasin v. Union of India. Moreover, assuming that it could have been issued under Section 144 of the CrPC, it has been issued by an officer not empowered to issue such an order under the provision;
- It has not been issued because of a public emergency or on account of public safety, which are prerequisites for suspending internet services under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension Rules);
- It does not comply with the directions of the Supreme Court in Anuradha Bhasin, as the Suspension Order was not published by the West Bengal Government, and also because it is disproportionate; and
- It restricts the right to speech guaranteed under Article 19(1)(a) of the Constitution.
In response, the Advocate General for the State of West Bengal defended the Suspension Order. He submitted that the Suspension Order was limited in its scope, as well as proportionate and necessary since there were reports that the internet may be used for cheating during the Madhyamik Pariksha by students.
The decision of the Calcutta HC
After hearing submissions of both the parties, the Calcutta HC stayed the operation of the Suspension Order. The judges were of the prima facie, i.e., preliminary, view that the Suspension Order was issued by an authority not empowered to do so by Section 144 of the CrPC, and that the Suspension Order does not disclose why the internet needs to be suspended. As of now, a copy of the order of the Calcutta HC is not available. We will provide a detailed summary of the order once it is available.
We are thankful to Senior Advocate Ranjan Bachawat who made submissions on behalf of the Petitioner. We are also thankful to the team of lawyers who assisted in this case, which included Shwetank Ginodia from R. Ginodia & Co., Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Krishnesh Bapat, Anandita Mishra and Amala Dasarathi.
We will continue advocating for the protection of your rights over the internet!