The Legal Validity of Internet Bans: Part I

In recent months, there has been a spree of bans on access to Internet services in India states, for different reasons. In Gujarat, the State government banned access to mobile Internet (data services) citing breach of peace during the Hardik Patel agitation. In Godhra in Gujarat, mobile Internet was banned as a precautionary measure during Ganesh visarjan. In Kashmir, mobile Internet was banned for three days or more because the government feared that people would share pictures of slaughter of animals during Eid on social media, which would spark unrest across the state.

Can State or Central governments impose a ban on Internet access? If the State or its officials anticipate disorder or a disturbance of ‘public tranquility’, can Internet access through mobiles be banned? According to a recent order of the Gujarat High Court: Yes; Section 144 of the Code of Criminal Procedure, 1973 (“CrPC”) empowers the State government machinery to impose a temporary ban.

But the Gujarat High Court’s order neglects the scope of Section 69A, IT Act, and wrongly finds that the State government can exercise blocking powers under Section 144, CrPC. In this post and the next, we argue that it is Section 69A of the Information Technology Act, 2000 (“IT Act”) which is the legal provision empowering the State to block access to the Internet (including data services), and not Section 144, CrPC. Section 69A covers blocks to Internet access, and since it is a special law dealing with the Internet, it prevails over the general Code of Criminal Procedure.

Moreover, the blocking powers must stay within constitutional boundaries prescribed in, inter alia, Article 19 of the Constitution. Blocking powers are, therefore, subject to the widely-accepted tests of legality (foresight and non-arbitrariness), legitimacy of the grounds for restriction of fundamental rights and proportionality, calling for narrowly tailored restrictions causing minimum disruptions and/or damage.

In Section I of this post, we set out a brief record of the events that preceded the blocking of access to data services (mobile Internet) in several parts of Gujarat. Then in Section II, we summarise the order of the Gujarat High Court, dismissing the petition challenging the State government’s Internet-blocking notification under Section 144, CrPC. In the next post, we examine the scope of Section 69A, IT Act to determine whether it empowers the State and Central government agencies to carry out blocks on Internet access through mobile phones (i.e., data services such as 2G, 3G and 4G) under certain circumstances. We submit that Section 69A does, and that Section 144, CrPC cannot be invoked for this purpose.

I. The Patidar Agitation in Gujarat:

This question arose in the wake of agitation in Gujarat in the Patel community. The Patels or Patidars are politically and economically influential in Gujarat, with several members of the community holding top political, bureaucratic and industrial positions. In the last couple of months, the Patidars have been agitating, demanding to be granted status as Other Backward Classes (OBC). OBC status would make the community eligible for reservations and quotas in educational institutions and for government jobs.

Towards this demand, the Patidars organised multiple rallies across Gujarat in August 2015. The largest rally, called the Kranti Rally, was held in Ahmedabad, Gujarat’s capital city, on August 25, 2015. Hardik Patel, a leader of the agitation, reportedly went on hunger strike seeking that the Patidars’ demands be met by the government, and was arrested as he did not have permission to stay on the rally grounds after the rally. While media reports vary, it is certain that violence and agitation broke out after the rally. Many were injured, some lost their lives, property was destroyed, businesses suffered; the army was deployed and curfew imposed for a few days across the State.

In addition to other security measures, the State government also imposed a ban on mobile Internet services across different parts of Gujarat. Reportedly, Hardik Patel had called for a state-wide bandh over Whatsapp. The police cited “concerns of rumour-mongering and crowd mobilisation through Whatsapp” as a reason for the ban, which was instituted under Section 144, Code of Criminal Procedure, 1973 (“CrPC”). In most of Gujarat, the ban lasted six days, from August 25 to 31, 2015, while it continued in Ahmedabad and Surat for longer.

II. The Public Interest Litigation:

A public interest petition was filed before the Gujarat High Court, challenging the mobile Internet ban. Though the petition was dismissed at the preliminary stage by Acting Chief Justice Jayant Patel and Justice Anjaria by an oral order delivered on September 15, 2015, the legal issues surrounding the ban are important and the order calls for some reflection.

In the PIL, the petitioner prayed that the Gujarat High Court declare that the notification under Section 144, CrPC, which blocked access to mobile Internet, is “void ab initio, ultra vires and unconstitutional” (para 1 of the order). The ban, argued the petitioner, violated Articles 14, 19 and 21 of the Constitution by being arbitrary and excessive, violating citizens’ right to free speech and causing businesses to suffer extensive economic damage. In any event, the power to block websites was specifically granted by Section 69A, IT Act, and so the government’s use of Section 144, CrPC to institute the mobile Internet block was legally impermissible. Not only this, but the government’s ban was excessive in that mobile Internet services were completely blocked; had the government’s concerns been about social media websites like Whatsapp or Facebook, the government could have suspended only those websites using Section 69A, IT Act. And so, the petitioner prayed that the Gujarat High Court issue a writ “permanently restraining the State government from imposing a complete or partial ban on access to mobile Internet/broadband services” in Gujarat.

The State Government saw things differently, of course. At the outset, the government argued that there was “sufficient valid ground for exercise of power” under Section 144, CrPC, to institute a mobile Internet block (para 4 of the order). Had the blocking notification not been issued, “peace could not have been restored with the other efforts made by the State for the maintenance of law and order”. The government stressed that Section 144, CrPC notifications were generally issued as a “last resort”, and in any case, the Internet had not been shut down in Gujarat; broadband and WiFi services continued to be active throughout. Since the government was the competent authority to evaluate law-and-order situations and appropriate actions, the Court ought to dismiss the petition, the State prayed.

The Court agreed with the State government, and dismissed the petition without issuing notice (para 9 of the order). The Court examined two issues in its order (very briefly):

1. The scope and distinction between Section 144, CrPC and Section 69A, IT Act, and whether the invocation of Section 144, CrPC to block mobile Internet services constituted an arbitrary exercise of power;
2. The proportionality of the blocking notification (though the Court doesn’t use the term ‘proportionality’).

We will examine the Court’s reading of Section 69A, IT Act and Section 144, CrPC, to see whether their fields of operation are in fact different.

Acknowledgements: We would like to thank Pranesh Prakash, Japreet Grewal, Sahana Manjesh and Sindhu Manjesh for their invaluable inputs in clarifying arguments and niggling details for these two posts.

Geetha Hariharan is a Programme Officer with Centre for Internet & Society. Padmini Baruah is in her final year of law at the National Law School of India University, Bangalore (NLSIU) and is an intern at CIS.