10 March 2022 10:50 AM GMT
The Calcutta High Court on Thursday imposed a stay on an order dated March 3, 2022 issued by the State government temporarily suspending internet services in eight districts of West Bengal between March 7 and March 16. The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination.The districts in which...
The Calcutta High Court on Thursday imposed a stay on an order dated March 3, 2022 issued by the State government temporarily suspending internet services in eight districts of West Bengal between March 7 and March 16.
The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination.The districts in which the internet services were ordered to be suspended are Malda, Murshidabad, Uttar Dinajpur, Coochbehar, Jalpaiguri, Birbhum, and Darjeeling. However, it had been clarified that there would remain no curbs on call and SMS services.
The internet shutdown had been challenged by Ashlesh Birder of Internet Freedom Foundation of India (IFF) on the ground that such an order of suspension could not have been issued by the State under Section 144 CrPC.
A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier directed the State government to file an affidavit containing the relevant documents relied upon and also present before the Court the decision taken by the Review Committee under Rule 2(6) of the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
On Thursday, Advocate General S.N Mookherjee apprised the Court that the Review Committee had concluded that it is satisfied that the impugned order has been issued in accordance with law for the maintenance of public order and to prevent prevent 'incitement to an offence'.
Pursuant to the perusal of the record, the Court noted that the impugned order for suspension of internet service in specified districts has been issued by the Additional Chief Secretary, Home & Hill Affairs Department, Government of West Bengal under Section 144 of the Cr.P.C. Opining that such an order under Section 144 CrPC can be issued only by a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate empowered by the State Government, the Court remarked,
"In the present case, the Additional Chief Secretary, Home & Hill Affairs Department, has exercised the power under Section 144 without there being any order of the District Magistrate, hence prima-facie the impugned order under Section 144 of the Cr.P.C is without jurisdiction."
The Court also dismissed the contention of the Advocate General that as held in the Supreme Court decision in Mohd. Shahabuddin vs. State of Bihar and others when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision. The Court observed that in the instant case, not only was the impugned order passed under Section 144 of the Cr.P.C but it had also been issued considering the requirements of Section 144 Cr.P.C, therefore, exercise of power and reason for such exercise of power both are prima-facie unsustainable.
Pertinently, it was also observed that in the impugned order, the State government had made a reference to Rule 2(1) and amended Rule 2(A) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (2017 Rules). The Court noted that the 2017 Rules have been issued with the object to regulate the temporary suspension of telecom services due to public emergency and public safety.
The Bench held that no material had been placed by the State government to show that such an order suspending internet services was require don account of a 'public emergency' or 'public safety'. Reliance was also placed on the Supreme Court judgment in People's Union For Civil Liberties (PUCL) v. Union of India and Another in this regard.
"Till now no cogent material has been placed before us justifying such internet suspension order on the ground of "occurrence of any public emergency" or "in the interest of public safety", the Court opined further.
Reference was also made to the Supreme Court judgment in Anuradha Bhasin v. Union of India wherein the Apex Court had considered the scope of Rule 2(2) of the 2017 Rules by holding that such an order must be a reasoned order and reasoning of the authorities and officers should indicate unavoidable circumstances necessitating passing of such an order.
In this regard, the Court observed that although the impugned order had made reference to 'intelligence inputs', the report of the Review Committee had made no such mention of intelligence inputs. Furthermore, opining that the impugned order lacks proper reasoning, the Court underscored,
"The order of the Review Committee discloses that the impugned order has been issued to ensure the conduct of Madhamik Examination in free and fair manner and to ensure eradication of unlawful and illegal means during the examination through technology of transmission of messages through transfer of data but the impugned order does not contain any such reason. The impugned order states that the internet services have been suspended to prevent obstruction, annoyance, or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance or the public tranquility, or a riot or any affray, but the reasons mentioned in the order of the Review Committee do not support it nor any material has been placed in support of such reasons."
It was further noted that such an order of suspension of internet services had been issued merely on the basis that a letter had been sent to the Additional Chief Secretary on March 10 by the President, West Bengal Board to discontinue internet services during Madhyamik exams on the ground that in the previous examinations in 2019 and 2020 some WhatsApp groups or Tiktok App had adopted unfair means and 19 examinees were caught with mobile phones in the examination hall in Bagdogra.
The Court also placed reliance on the Rajasthan High Court decision in Dhirendra Singh Rajpurohit vs. State of Rajasthan wherein the State government had apprised the High Court that the concerned Special Secretary of Home had directed Divisional Commissioners of various Divisions that no order suspending the internet services should be issued in future during the examination.
Accordingly, the Court proceeded to stay the impugned order by observing,
"Considering the reasons mentioned above and prima facie conclusion that the impugned order under Section 144 of the Cr.P.C has been passed without authority of law and taking note of the requirement of Section 5(2) of the Indian Telegraph Act, 1885, the Rules of 2017, the judgment of the Hon'ble Supreme Court in the case of Anuradha Bhasin (supra) and People's Union For Civil Liberties (PUCL) (supra) and also the fact that the reason now put forward for issuing the impugned order are not contained in the impugned order and that the State has various other means available to prevent use of unfair means in the Madhyamik Examination and that the prima-facie test of proportionality is not satisfied, we are of the view that a case of grant of interim relief is made out."
While staying the impugned order, the Court however made it clear that this would not in any way prevent the State government from taking adequate measures to prevent cheating in the upcoming Class 10 Board exams.
The State government was also ordered to file a detailed affidavit-in-opposition in 2 weeks and any reply thereto was ordered to be filed within 2 weeks thereafter.
The Court is slated to hear the matter next on April 6.
Senior advocate Ranjan Bachawat appearing on behalf of the petitioner argued that no sustainable reasons have been assigned in the impugned order in support of suspension of internet services. Furthermore, he contended that the impugned order under Section 144 CrPC had been issued by the Additional Chief Secretary, Home and Hill Affairs Department, West Bengal even though he does not possess the power to issue a reasoned order under Section 144 CrPC.
It further highlighted that the impugned order can have an adverse impact on various services such as banking, credit card transactions among others and thus lack the element of proportionality. Reliance was placed on the Supreme Court judgment in Anuradha Bhasin v. Union of India. The senior counsel further submitted that an order of suspension of internet services can be issued under the the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 only due to 'due to public emergency or public safety' however no such reasons exist in the instant case.
The senior counsel further averred that similar attempts had been made by other State governments in the past however they had remained unsuccessful. Reliance was also placed on the Supreme Court judgment in The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors to contend that any administrative decision or judicial order must be supported by reasons.
The Court was also apprised that if the State government wished to prevent mass cheating then it should have imposed an internet shutdown uniformly and not only in certain districts of the State.
On the other hand, Advocate General S.N Mookherjee appearing for the State government submitted that the impugned order had been issued in order to prevent mass cheating during the Class 10 Board exams in the State and that the impugned order is not in violation of the law laid down by the Supreme Court in Anuradha Bhasin v. Union of India.
He further argued that if State Board exams were to be cancelled on the ground of mass cheating, then the interest of students would suffer. The Court was further apprised that the State government has the power to order such a suspension of internet services under the the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.
The suspension of internet services was to take place on March 7, 8, 9, 11, 12, 14 and 16 between 11 am to 3.15 pm. The order issued by the Additional Chief Secretary, Home and Hill Affairs Department, West Bengal on March 6 in this regard stated, "Whereas intelligence reports have been received that Internet transmissions and Voice over Internet telephony may be used for unlawful activities in certain areas over the next few days; and whereas examination of the information received gives reason to believe that such unlawful activities are likely to occur in the absence of preventive measures; and whereas the Constitution of India guarantees freedom of expression of Indian Citizens but at the same time allows for reasonable restrictions on the same; and whereas no restriction is being imposed on voice calls and SMS and on newspapers, hence communication and dissemination of knowledge and information is not stopped in any way."
The order had further added, "Now, therefore in order to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray, through an order under Section 144 CrPC, and in compliance of sub-rule 2 (1) of Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 and sub-rule 2(A) of Temporary Suspension of Telecom Services (Amendment) Rules, 2020 it is promulgated that: 1. Any data related message or class of messages to or from any person or class of persons relating to any particular subject, brought for transmission by or transmitted or received by any telegraph within the ambit of the India Telegraph Act, 1885, shall temporarily not be transmitted in the interest of maintaining public order and preventing incitement to the commission of any offence within the jurisdiction of the Block/Police Stations listed in the Annexure and duly authenticated by me."
The move from the administration came after question papers were leaked through social media platforms from some examination centres within an hour of commencement of exams in 2019 and 2020.
The petitioner is also represented by R.Ginodia & Co and advocates Vrinda Bhandari, Tanmay Singh, Krishnesh Bapat, Anandita Mishra and Natasha Maheshwari.
Also Read: PIL In Calcutta High Court Challenges State's Decision To Suspend Internet Services Amid Class 10 Board Exams, Govt To Respond By Tomorrow
Case Title: Ashlesh Biradar v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 75
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