Gauhati HC issues notice in challenge against internet shutdowns but refuses interim relief

Tl;dr

On 18th August, the Government of Assam issued an order directing the suspension of internet services in several districts in Assam on the 21st and 28th of August to prevent cheating during governmental recruitment examinations. On 23rd August, Mr Raju Prosad Sarma, a social worker based in Assam filed a petition asking the Gauhati HC to restrain the Government of Assam from suspending internet services on the 28th August. On 26th August, the Gauhati High Court refused to grant interim relief and the Government of Assam suspended internet services on the 28th. Advocate Gayatri Goswami represented the Petitioner in Court and IFF provided legal support.

Why Should You Care

India imposes more internet shutdowns than most countries, and these orders are extremely detrimental to civil liberties as well as the economy. But 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 Gauhati HC in time to prevent the suspension of internet services on the 28th of August. Unfortunately, we were unable to convince the Gauhati HC to restrain the Government of Assam from suspending internet service. However, we were able to secure an undertaking from the Government of Assam to now suspend internet services on the next date of the exam, i.e. September 11, 2022. Nevertheless, incremental risks such as this one are necessary to gradually establish a precedent that the internet cannot be suspended to prevent cheating in exams. This strategy has brought success to the cause in the past. We will continue our efforts against unlawful suspension orders and keep speaking truth to power.

Internet Suspension Order

On 18th August, the Government of Assam issued the Suspension Order directing the suspension of internet services for 4 hours each on the 21st and 28th of August. The Suspension Order directed the suspension of all forms of mobile internet services including 2G, 3G and 4G to ensure that candidates do not use ‘unfair means’ during the exam. Interestingly, the Suspension Order cites letters the Government of Assam received from the Secondary Education Board of Assam (‘SEBA’). In those letters, SEBA only asked the Government to explore the feasibility of disabling internet connectivity “at the examination centre” but the Suspension Order has directed the suspension of internet services in the entirety of the listed districts.

On the 21st of August, the Government of Assam partly enforced the Suspension Order and suspended internet services for several hours while SEBA was conducting the exam. As a result of the suspension, thousands of residents of Assam could not access mobile internet services which are necessary to exercise their right to speech as well as the right to carry on any occupation, trade or business.

Petition against the Suspension Order

Mr Raju Prasa Sorma, a social worker based in Kamrup (Metro), Assam with more than 30 years of experience, challenged the legality Suspension Order. In the Petition, he highlighted how the Suspension Order had affected him on the 21st of August and urged the Gauhati HC to restrain the Government of Assam from suspending internet services on the 28th of August. He submitted that the Suspension Order was illegal for the following reasons:

1. Section 5(2) of the Telegraph Act, 1885 permits suspension of internet services only on the occurrence of a public emergency or in the interest of public safety. The Supreme Court in Anuradha Bhasin had held that ‘public emergency’ is such a situation which involves ‘widespread risk of injury to public’ and the expression ‘public safety’ means state of danger or risk for the people at large. Cheating in exams does not meet this threshold.
2. Calcutta High Court in Ashlesh Biradar v. State of West Bengal stayed the internet suspension order issued by the Government of West Bengal to prevent cheating in exams on the ground that it did not comply with Section 5(2) of the Telegraph Act, 1885. Moreover, the Parliamentary Standing Committee on Communication and Information Technology in its twenty-sixth report titled  ‘Suspension of Telecom Services/Internet and its Impact’ has observed that cheating in exams does not amount to large-scale public safety concerns or public emergencies and that “suspension rules have been grossly misused leading to huge economic loss and causing untold suffering to the public, as well as severe reputational damage to the country.”
3. Supreme Court in Anuradha Bhasin has held that the exercise of the right to freedom of speech and expression as well as the right to carry on any occupation, trade or business through the medium of the internet, is constitutionally protected. Any restriction on these rights must be proportionate. The Suspension Order is disproportionate because there are less intrusive but effective ways of preventing cheating in exams than suspending internet services, such as ensuring candidates do not carry mobile phones in the exams and increasing invigilation.

Apart from the above, the Petition also sought directions to the Government of Assam to comply with the directions of the Supreme Court in Anuradha Bhasin, including the obligation to publish internet suspension orders.

Decision of the Guwahati HC

A single-judge bench of the Gauhati High Court extensively heard counsels for the Petitioner and the Government of Assam on the 25th and 26th of August. At this stage, the Court was hearing submissions only on whether the Government of Assam ought to be restrained from suspending internet services on the 28th of August. In its order dated August 26th, 2022, the Court refused to restrain the Government of Assam because of the following reasons, which are stated in the order:

1. The exam was scheduled for the 28th of August which was only two days away from the 26th of August. Thus, the Court felt that an interim order may cause disruption in conducting the exams.
2. The Counsel for the Government of Assam assured the Court that the internet will not be suspended during the examination scheduled on September 11th, 2022.
3. The Petitioner failed to make out a case for interim relief.

The Court did not adjudicate whether the Suspension Order was illegal or finally address the larger question of whether the Executive can suspend internet services to prevent cheating in exams. The Court has issued notice on these questions and directed the Government of Assam to explain its stance through an affidavit. We will continue to assist the Gauhati HC as it adjudicates these important issues.

We are thankful to Advocate Gayatri Goswami. We are also thankful to the team of lawyers who assisted in this case, which included Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Barnali Choudhary, Krishnesh Bapat, Anandita Mishra and Anubhab Atreya. While we did not achieve the outcome we wanted, we do believe that sustained efforts before the Courts are necessary to protect your rights over the internet.

Incremental litigation may yield slow rewards, but also limits risks, and ensures that gains are made on issues without negatively impacting broader goals. The Assam High Court has indicated that it wants to hear the issue of whether internet suspensions can be ordered for the conduct of examinations, and we will be there on the next date of hearing to assist the High Court.

Important Documents

1. Petition against the order dated 18.08.2022 (link)
2. Internet suspension order dated 18.08.2022 (link)
3. Gauhati HC order dated 26.08.2022 (link)