Internet Blockade | Gauhati High Court Allows 'Internet Freedom Foundation' To Intervene In PILs Challenging Telecom Services Rules, 2017

The Gauhati High Court has allowed an Interlocutory Application filed by the 'Internet Freedom Foundation' ("IFF"), seeking permission to be impleaded as an intervener in a Public Interest Litigation ("PIL") filed by Ajit Kumar Bhuyan, Editor-in-Chief of Prag News, inter alia challenging the constitutional validity of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 ("the Rules"). IFF is a registered charitable trust, constituted with an objective to defend freedom of speech and expression in the digital era. In the past, it has challenged the vires of Section 69A of the Information Technology Act and the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 before the Supreme Court. Apart from that, it has also taken active part in many notable cases including Anuradha Bhasin v. Union of India, which pertained to internet blockade in Jammu and Kashmir in 2019-20. It impugns the Rules basically on the following broad grounds, viz. The en-masse blanket suspension of telecommunication services is an inherently disproportionate measure because communication shut-downs apply indiscriminately and they fail to distinguish between lawful speech (discussion and advocacy) and unlawful speech (incitement). This is violative of Articles 14, 19 and 21 of the Constitution. Such prior restraints on speech inverse the foundational constitutional logic of fundamental rights being the norm and restrictions upon them being the exception, and they cannot be imposed unless there exists a declared state of emergency under Article 352 and suspension of fundamental rights under Articles 358 and 359. The suspension of internet and telecom services is an unreasonable restriction on the freedom of speech and expression, both of users and media, guaranteed under Article 19(1)(a) of the Constitution. The Rules unreasonably restrict access to the internet, which is an essential tool in today's inter-connected world to access information about pandemic like COVID-19 and political, economic, social events guaranteed under Article 19(1)(a) and the right to conduct business protected under Article 19(1)(g). The Rules suffer from serious procedural deficiencies and lack of due process, caused by the absence of independent oversight, including independent judicial oversight making them highly susceptible to arbitrary use. The Rules are ultra vires the Indian Telegraph Act, 1885. Suspension of telecommunication services is an irrational and counterproductive measure because empirical evidence suggests that internet shutdowns actually incentivize forms of violent collective action which require less communication, coordination and planning than peaceful demonstrations. Out of many arguments, it has particularly averred that internet shutdowns under the Rules are inherently indiscriminate and overbroad in nature as they do not differentiate based on the content or the sender of the communication. The proportionality test endorsed in Justice K.S. Puttaswamy (Retd.) v. Union of India, requires the state to demonstrate the necessity of a "rights restricting measure" by proving that there were no less restrictive alternatives available. Therefore, it submitted that the burden is upon the State to show that less restrictive alternatives like blacklisting specific numbers, blocking bulk SMSs or blocking specific websites had been duly considered before suspending telecommunication services and justify why these alternatives were not adopted. The original petitioner in the PIL did not object to the impleadment of IFF as an intervener. Accordingly, the Court allowed the application by passing direction to the registry to effectuate necessary changes in the cause title of the case.The PIL was instituted in the year 2019, following suspension of Mobile Internet/ Data Service of all Mobile Service Providers in 10 districts of Assam in the wake of stir against Citizenship Amendment Act 2019.Also Read: Gauhati High Court Directs Restoration Of Mobile Internet I.A. Details: Case Title: Internet Freedom Foundation v. The State of Assam & Ors. Case No.: I.A.(Civil)/1075/2020 Date of Order: 31 January 2022 Coram: Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia PIL Details: Case Title: Ajit Kumar Bhuyan v. The State of Assam & Ors. Case No.: PIL 79 of 2019Click Here To Read/Download Order

Internet Blockade | Gauhati High Court Allows 'Internet Freedom Foundation' To Intervene In PILs Challenging Telecom Services Rules, 2017

Jyoti Prakash Dutta

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