9 March 2022 7:29 AM GMT
The Calcutta High Court on Wednesday sought response from the State government in a Public Interest Litigation (PIL) challenging the decision of the State government to temporarily suspend 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...
The Calcutta High Court on Wednesday sought response from the State government in a Public Interest Litigation (PIL) challenging the decision of the State government to temporarily suspend 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 will be suspended are Malda, Murshidabad, Uttar Dinajpur, Coochbehar, Jalpaiguri, Birbhum, and Darjeeling. However, it has been clarified that there remains no curbs on call and SMS services.
A bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State government to file an affidavit containing the relevant documents relied upon, by tomorrow i.e. on March 10 at 10:30am.
Senior advocate Ranjan Bachawat appearing on behalf of the petitioner apprised the Court that the notification of suspension of internet services issued on March 3, 2022 does not meet the requirements laid down by the Supreme Court in Anuradha Bhasin v. Union of India and thus cannot be sustained in law.
It was further argued that although the notification clearly states that such an order of suspension of internet services has been issued by the State Government under Section 144 CrPC, however the notification does not make any reference to any order issued by the concerned District Magistrate in this regard which is mandated under the provision.
Advocate General S.N Mookherjee appearing for the State government apprised the Court that such a notification on suspension of internet services has been issued not only under Section 144 CrPC but also under sub-rule 2 (1) of Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 (2017 Rules) and is thus tenable in law. He further contended that the notification issued is in compliance with the directions issued by the Supreme Court in Anuradha Bhasin v. Union of India.
Pertinently, the Advocate General apprised the Bench that a meeting of the Review Committee constituted under Rule 2(6) of the 2017 Rules is scheduled to be held tomorrow at 11am.
Accordingly, the Court listed the matter for further hearing tomorrow i.e. on March 10 at 2pm after directing the State government to apprise the Court about the decision taken by the Review Committee tomorrow.
Submissions on behalf of the petitioner
Senior advocate Ranjan Bachawat brought to the notice of the Court that the notification issued by the State government suspending internet services is not available on any official government website. He further submitted that although various newspapers have reported on the order of suspension, however even they do not have access to the full official notification.
The Court was further apprised that the notification issued by the State government stipulates that such a decision has been taken in order to prevent 'unlawful activities'. However it was argued that the notification is vague as it does not mention what specific unlawful activities are sought to be curtailed through the suspension of internet services.
Furthermore, it was contended that the notification is arbitrary as it orders the suspension of internet services in intervals and on specific days in a week. The senior counsel remarked, "It cannot be that criminals go to sleep after 3:30 pm and on Sundays".
Pertinently, it was contended that such a notification of suspension cannot be issued by the State government under Section 144 CrPC without a judicial order first being issued by a District Magistrate. Reliance was placed on the Supreme Court judgment in Anuradha Bhasin v. Union of India in this regard.
The senior counsel further averred that although the notification does not mention the reason for which internet services has been suspended, the dates and timings of suspension of internet services coincides with the dates of the Class 10 State board (Madhyamik) examination. He thus argued that as per Supreme Court's directions the notification should have provided reasons and material facts while ordering such a suspension.
The Court was also apprised that such an order of suspension does not fulfilled the test of proportionality as propounded by the Supreme Court in Anuradha Bhasin v. Union of India. The senior counsel argued that such blanket suspension of internet services would have an adverse effect on the functioning of banking services as well as businesses. He also submitted that Courts which are conducting virtual hearings in the affected districts would also face inconvenience and that university students who are still taking recourse to online classes would be aggrieved.
It was also submitted that the order of suspension of internet services under Section 144 CrPC could not be issued without an incumbent situation of emergency as has been laid down by the Supreme Court in the aforementioned judgment.
The senior counsel also vehemently refuted the submission of the State government that the impugned notification had been issued not only under Section 144 CrPC but also under sub-rule 2 (1) of the 2017 Rules. Placing reliance on the text of the notification, it was argued that the notification stipulates that it has been issued 'under' Section 144 CrPC, and' in compliance' with 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 (2020 Rules).
Submissions on behalf of the State government
Advocate General S.N Mookherjee appearing for the State government argued that the impugned notification had not been issued under Section 144 CrPC but under sub-rule 2 (1) of the 2017 Rules and under sub-rule 2(A) of the 2020 Rules.
He further contended that the statutory provisions include various safeguards thus preventing any State excesses. It was submitted that the 2017 Rules mandate the Secretary to the State Government in-charge of the Home Department to issue such a notification which has been done in the instant case.
It was further submitted that the 2017 Rules does not make publication of such a notification mandatory but instead only mandate that such a notification suspending internet services should be conveyed to designated officers of the telegraph authority or to the designated officers of the service providers.
The Court was further apprised that in compliance with Rule 2(6) of the 2017 Rules, a meeting by the Review Committee has been scheduled for tomorrow at 11 am within five working days since the issue of directions for suspension of services.
The Advocate General also acknowledged that the State government had taken such a decision in order to prevent instances of cheating by students during the upcoming board examinations. He emphasised that the State government had received 'intelligence inputs' pursuant to which such an order had been issued.
It was further submitted that since no restrictions have been placed on call and SMS services, dissemination of information is possible and thus fulfils the test of proportionality as propounded by the Supreme Court in Anuradha Bhasin v. Union of India.
He further argued that the Supreme Court had held in the aforementioned judgment that reasonable restrictions on rights guaranteed under Article 19(1) of the Constitution is permissible in order to prevent 'incitement to an offence' and when such a restriction is imposed subject to a statutory provision.
The Advocate General also highlighted that purported aggrieved citizens such as students or businessmen had not approached the Court alleging a violation of their rights and thus also questioned the maintainability of the petition.
The suspension of internet services will 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 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.
Case Title: Ashlesh Biradar v. State of West Bengal
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