Written by Nakul Nayak
Earlier in this blog I had written at length about the legal backdrop in which any mobile Internet shutdown may be grounded and the constitutional questions surrounding Gujarat’s repeat application of this strategy as a public disorder shield in the Patidar reservation agitation. Three days back, the Gujarat High Court, in an Order to a public interest litigation, upheld the constitutional validity of the Internet ban. In this post, I go on to critically analyse the Order of the Court.
Before moving on to substance, an important question of accountability must be highlighted. I had lamented in my initial two posts (here and here) as well about how the issuance of notifications of the Internet shutdowns have been shrouded in secrecy, nearly impossible to access. This ostensibly played itself out in Court when the Government Pleader, in response to an argument, submitted that “the notification for blocking of internet facility on mobile phones from 25th August 2015 onwards was without there being any notification, is not correct. She submitted that the notification was already issued …”[sic] It is quite possible that the Petitioner, as I, was unable to find the impugned notification. However, a check of all government websites during the shutdown did not display any such notification to my best knowledge. It is hoped that as a matter of course the Government shall publish all such notifications in the public domain at the earliest instance.
On substantive law, the Court issued three major holdings. Of relevance to us here are two issues. First, the Court adjudicated on what would be the correct law that governed the Internet shutdown in Gujarat. Petitioners argued that it would be sec. 69A of the IT Act (blocking powers) as opposed to sec. 144 of the CrPC (preservation of public order). As I noted in my first post, the application of sec. 69A to state bans on internet communication seems unlikely since sec. 69A requires Central Government direction. We find in paragraph 15 of the Order that the impugned notification suspending all mobile data access was issued by the Commissioner of Police, City of Ahmedabad (and not any Central Government authority). Without taking note of this nuance, the Court went on to analyse sec. 144 of the CrPC and sec. 69A of the IT Act. Eventually, the Court concluded that “the area of operation of Section 69A is not the same as that of Section 144 of the Code.” The Court reasoned that
Section 69A may in a given case also be exercised for blocking certain websites, whereas under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access.
This sentence is important because it expressly states that blocking powers under sec. 69A is applicable only to access to specified websites and not to access to the web itself. Does this, by extension, also mean that Internet shutdowns may only be exercised through sec. 144 orders? This remains to be seen. With no reference to either the Indian Telegraph Act or the Unified Access License in the Order, it seems too early to conclude anything yet.
The other important issue before the Court was overbreadth; that whether the state ban on mobile Internet was unreasonably excessive. Before proceeding to the ruling, it is prudent to recount that in Shreya Singhal, Nariman J. held that “restrictions on the freedom of speech must be couched in the narrowest possible terms.” This is not limited to the statute-book application of the law but also to its executive application. Readers would also recall that in my second post I had speculated that the Gujarat mobile Internet ban suffered from overbreadth in treating all mobile apps (communication or otherwise) the same and restricting their access.
In our present case, the Court held that the restrictions to freedom of speech by the mobile Internet ban were minimal (and thus presumably narrowly tailored) because citizens still had access to the internet through broadband and wifi. This is a classic case of viewing the glass half-full or half-empty. On the one hand, the complete mobile data disruptions could be seen as absolute and affecting all smartphone users. On the other hand, as the Court has done, these data disruptions could be seen as reasonable as there is no complete ban on the Internet (with the provisions of broadband and wifi) but only on a particular mode of technological access to the same. In legal standards, the former perspective may be seen to be speech-protective while the latter speech-restrictive.
It is unfortunate that the Court chose the latter view, however what is abysmal is its reasoning. The Court’s reasons rested on two limbs. First, it held that as a matter of course, the executive authority should be allowed to devise its own manner of regulation. Secondly, and shockingly, the Court found
that there are [sic] number of social media sites which may not be required to be blocked independently or completely. But if Internet access through mobiles is blocked by issuing directions to the mobile companies, such may possibly be [sic] more effective approach found by the competent authority.
This is a textbook example of overbreadth. The Court concedes that there was no necessity to block all social media sites, though it was well worth the set off with a “possibly” more effective approach of counter-action. The requirement that restrictions on free speech be narrowly tailored obviously have no-takers. The Court also shares no analysis on why restrictions to access to other apps (say internet banking or hotel reservation) should also pass constitutional muster.
By finding that mobile Internet shutdowns are reasonable, the Court also does not take heed to the classes that rely exclusively on mobile data as their source of Internet communication/activity. I will go out on a limb and assert that it’s the less-privileged that fall within this class, without the knowledge or the resources to operate a computer with broadband internet. Consider also that 56% of all phones in Gujarat are smartphones.
As we progress towards an age where Internet on-the-go becomes more important than ever, it is all the more necessary to steer clear of rulings that submit to internet shutdowns.
Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.