Gauhati HC allows IFF's intervention application in petition challenging the constitutionality of internet shutdown rules #KeepItOn

tl;dr

Recently, we updated you that the Gauhati High Court has agreed to hear an intervention application filed by IFF in proceedings challenging the constitutionality of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Rules’) issued under the Indian Telegraph Act, 1885 (‘Telegraph Act’). At a hearing dated January 31, 2022, this Application has been allowed by the Gauhati High Court, and IFF has been impleaded in the case. This means that IFF is now allowed to assist the Court with oral and written submissions at every stage of the proceedings.

Background

The State of Assam suspended mobile internet services for a week in December 2019 in response to widespread protests against the enactment of the Citizenship (Amendment) Act, 2019. When several individuals approached the Gauhati High Court questioning the legality of the suspension, the Court stepped in and directed restoration of mobile internet services on December 19, 2019. The Court held that the State Government had failed to demonstrate how the law and order situation necessitated an internet suspension. On February 20, 2020, the Gauhati High Court dismissed review petitions filed against the order dated December 19, 2019 and disposed of all but one petition challenging the suspension of mobile internet services.

That one petition was a public interest litigation filed by Mr Ajit Bhuyan, which challenged the constitutionality of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘2017 Rules) in addition to the suspension of internet in December 2019. This petition was taken up for hearing by the Court and was first heard on February 20, 2020 where the State of Assam and the Union Government were permitted to file a reply.

IFF’s intervention application

In June 2020, IFF filed an intervention application (‘Application’) in the proceedings initiated by Mr Bhuyan to assist the Gauhati High Court in determining the constitutionality of the Rules. We have discussed our application in detail in our previous blog post where we pointed out the following:

  • that the constitutional validity of the 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 Rules but stated that it was not concerned with its constitutionality since the parties therein had not canvassed arguments on the same (paragraph 84).
  • that the 2017 Rules were unconstitutional for the reasons that (i) they permit passing of en-masse blanket suspension orders which do not distinguish between lawful speech (discussion, debate and advocacy) and unlawful speech (incitement to violence), (ii) they suffer from procedural deficiencies in as much as the passing of suspension orders lacks judicial oversight, (iii) they are counterproductive and do not improve law and order situations, (iv) they enable the occurrence of huge losses to the country, and (v) they prevent individuals from carrying out their businesses, trades or occupations 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.

Notice was issued on December 23, 2021

IFF’s Application was listed for consideration on December 23, 2021 before a bench led by Justice Kotiswar Singh of the Gauhati High Court. After briefly hearing Mr Anubhab Atreya, who made submissions on behalf of IFF, the Court issued notice on the application  agreed to hear it in detail on another date.

This meant that the High Court held that it was  willing to hear the contents of the application in order to decide whether or not the application will be allowed. If allowed, IFF would be made a party to the proceedings, and would be able to make written and oral submissions to assist the Court throughout the proceedings.

Proceedings on January 31, 2022

The Application was listed before a bench led by the Chief Justice Sudhanshu Dhulia of the Gauhati High Court, on January 31, 2022. When the Court was informed that the Petitioner may be inclined to withdraw the main petition, the Court emphasized that a public interest litigation, being a property of the Court on filing, could not be withdrawn. IFF’s submissions were advanced by Ms. Gayatri Goswami who prayed that the Application filed by IFF be allowed so that IFF could assist the Court in deciding the constitutionality of the Rules. The Court allowed our Application and directed it to be listed for hearing after 4 weeks.

This has made IFF a party to the proceedings. IFF will now assist the Court at all stages of the proceedings, and make oral, as well as written submissions before the Court. In addition to addressing the legality of the Rules, IFF will also address the impact of internet shutdowns, before the Court, through the production of empirical studies and expert affidavits related to effectiveness, social and economic cost, and technical feasibility of internet shutdowns.

We are grateful to the legal team led by Ms. Gayatri Goswami, Advocate and comprising Advocates Ms. Abantee Dutta, Mr. Anubhab Atreya, Ms. Vrinda Bhandari, Mr. Abhinav Sekhri, Mr. Tanmay Singh, Mr. Krishnesh Bapat and Ms. Anandita Mishra for appearing on behalf of IFF.

The constitutionality of the Rules which allow governments to pass arbitrary internet shutdown orders is an important question of law and impacts every citizen of India. We will be prepared to assist the Court at the next date of hearing, and will update you thereafter.

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)
  2. Previous blog post titled “A challenge to internet shutdown rules: Gauhati HC agrees to hear IFF's application” (link)