BREAKING: Calcutta High Court Stays WB Gov Order Temporarily Suspending Internet Services Amid Class 10 Board Exams [Read Order]

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...

BREAKING: Calcutta High Court Stays WB Gov Order Temporarily Suspending Internet Services Amid Class 10 Board Exams [Read Order]

Aaratrika Bhaumik

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