tl;dr
Calcutta High Court (‘Calcutta HC’) disposed of the petition filed by Ashlesh Biradar challenging an internet shutdown order dated 03.03.2022 (‘Suspension Order’) issued by the State of West Bengal. The Court made an important observation that all state authorities are bound by both the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Telecom Suspension Rules’) that regulate the manner in which telecom services are to be suspended by governments, as well as the directions of the Supreme Court in Anuradha Bhasin v. Union of India. This was the same matter in which the High Court issued India’s first reasoned interim order lifting an ongoing internet shutdown. This interim order has been confirmed by the final order.
Why should you care?
On March 10, 2022, in the first order of its kind in India, the Calcutta HC issued a reasoned order lifting an ongoing internet shutdown in various parts of West Bengal. The order was reached with the prima facie view that the internet shutdown order was unreasoned, passed without authority of law, and disproportionate. With the disposal of the writ petition, this order will be crucial to persuade other courts of the illegality of future instances of internet shutdowns.
India’s internet shutdown problem
India imposes more internet shutdowns than most countries, which is detrimental to both civil liberties and the functioning of businesses and the economy, for numerous reasons that we have constantly pointed out since our inception. Worse, the internet is commonly suspended for circumstances as unreasonable as to facilitate the conduct of examinations.
Internet shutdowns are not per se illegal in India, as long as they are under and in accordance with applicable law. In India, the applicable law comes from the Telegraph Act, 1885 and the Telecom Suspension Rules. Noting that the scheme of the Act and the Rules is not sufficient, the Supreme Court also issued detailed directions in the landmark Anuradha Bhasin judgment. Despite this, most states do not comply with the requirements of the Telecom Suspension Rules or the Supreme Court’s judgment.
On March 3, 2022, the Government of West Bengal issued the Suspension Order directing suspension of internet services in various districts of West Bengal for eight days over the next two weeks. This shutdown applied to all forms of the internet, i.e. broadband, leased line, mobile data, 2G/3G/4G, etc. The Suspension Order stated that it was issued on the basis of intelligence reports, which suggested that the internet may be used for ‘unlawful activities’, but the timeline of the internet shutdown coincided strongly with the schedule of the Madhyamik Pariksha (Secondary Examination), 2022 for Class 10 students.
India’s first reasoned interim order against an ongoing internet shutdown
The Suspension Order only became publicly available on Sunday, March 6, 2022. IFF lent legal support to Ashlesh Biradar in his Writ Petition, and was able to draft and file the matter before the Calcutta HC within two days. It was only when we approached the Court, that the Government of West Bengal admitted that the internet shutdown was in fact imposed to facilitate the conduct of Class 10 exams.
The Calcutta HC extensively heard the challenge to the Suspension Order on March 9 and 10, 2022, and eventually stayed the operation of the Suspension Order. The Court took a prima facie view that the Suspension Order was issued without authority of law, without valid reasons, and in the presence of other less restrictive means. It also found that there was no cogent material satisfying the grounds of ‘public emergency’ and/or ‘public safety,’ which need to be met for a legitimate internet shutdown.
The matter has achieved finality
On July 18, 2022, while disposing of Ashlesh Biradar’s petition, the Calcutta HC confirmed the terms of the March 10, 2022 interim order, and noted that by virtue of the expiry of the time for which the original internet suspension had been ordered, the interim order has also lost its force.
The Calcutta High Court has thus disposed of the matter, and held that:
“The Rule of 2017 are required to be complied with and the Hon’ble Supreme Court has already laid down the law which is binding under Article 141 of the Constitution, hence, we express hope that while issuing any such order in future, the State authorities will duly comply with the same.”
This is a critical observation by the Calcutta HC, and will be useful to persuade states, including West Bengal, to follow the law while suspending internet services. This will pave the way for our continued advocacy with states, requesting them to comply with the guidelines of the Supreme Court in Anuradha Bhasin v. Union of India.
We are grateful to Senior Advocate Ranjan Bachawat who made submissions on behalf of the Petitioner. We are also thankful to the team of lawyers which assisted in this case, which included Manoj Tiwari and Shwetank Ginodia from R. Ginodia & Co., and Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Krishnesh Bapat, Anandita Mishra, Amala Dasarathi, Satyaki Mukherjee, and Sarosij Dasgupta.
We will continue advocating for the protection of your rights over the internet!
Important Documents
1. Order of the Calcutta High Court dated 18.07.2022 (link)
2. Order of the Calcutta High Court dated 10.03.2022 (link)
3. Previous blog post titled ‘Calcutta HC stays internet shutdown issued by West Bengal Government’ (link)
4. Petition against the order dated 03.03.2022 (link)
5. Internet suspension order dated 03.03.2022 (link)