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‘Hooghly district magistrate is at level of additional secretary, can order internet shutdown,’ West Bengal govt in Calcutta HC

In a special sitting on May 16, the West Bengal government — via its Advocate General  argued that all procedural safeguards under the Temporary Suspension of Telecom Rules, 2017, were followed in ordering the 5-day internet shutdown (May 12-17) in parts of Hooghly district.

The state government was arguing in response to a petition filed by SFLC.in in the Calcutta High Court which asked for quashing the internet shutdown. The government said that the Hooghly district magistrate had the authority to pass the order, since he is at the rank of an additional secretary. Under the Temporary Suspension of Telecom Rules 2017, a state-level shutdown can be ordered only by the secretary of the state home department. SFLC.in, a Delhi-based digital rights organisation, refuted this and will now file a counter-statement.

The Advocate General also assured the court that the internet shutdown would not be extended. He submitted that the review committee meeting will be held as per the Anuradha Bhasin judgment. The Advocate General will also filed an affidavit replying to SFLC.in’s arguments. The case is now listed for May 22.

On May 12, the district magistrate of Hooghly suspended the internet for 5 days in Serampore and Chandennagore subdivisions, after communal tension broke out in Sheteshwar city (in Hooghly district). Internet was suspended at 2:30 pm on May 12 until 5 pm on May 17, amidst a nationwide lockdown and widespread disruption due to the pandemic, after communal clashes broke out in those areas when some people crossed over containment zone limits to use a public toilet.

The suspension was ordered under Section 144, and not under the rules established for internet shutdowns the Temporary Suspension of Telecom Services Rules, 2017 under the Telegraph Act. SFLC.in had then petitioned the Calcutta HC to quash the internet shutdown. It had also asked for an order directing the state government to not suspend any telecom service during the COVID-19 crisis, including during the lockdown.

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After an initial hearing on May 15, the court ordered a special sitting on May 17. SFLC.in is being represented by Prasanth Sugathan and Indrajeet Dey. The respondents are the West Bengal state government, state home secretary, and the Hooghly district magistrate. The case is being heard by a division bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee.

Sec 144 not for shutdowns, rules already exist: among SFLC.in’s arguments

1. Section 144 cannot be used for shutdowns: The petition stated that the West Bengal government “are guilty of trivialising imposition of an internet shutdown which consequently has had serious implications on free speech & expression, and other fundamental rights”. The petition states that the order is illegal since there is a provision specifically to impose internet shutdowns, and prevent arbitrary shutdowns. The rules provide procedural safeguards since they require that:

  • The shutdown can be ordered by the State Home Secretary, and
  • It has to be subject to a Review Committee and also subject the shutdown to a review mechanism.

It also goes against the Supreme Court’s judgment in Anuradha Bhasin, where it had laid down that Section 144 can be exercised when there is an emergency.

2. Measures against COVID-19 need internet and communication is stalled: These include telemedicine, contact tracing via (and usage of) Aarogya Setu, social distancing guidelines, ordering essentials online, all of which cannot function without high-speed internet access. Citizens will be unable to get information on infection numbers, social distancing measures imposed, and medical advice and guidelines to be followed, SFLC.in said in the petition. People will not be able to communicate with each other, or call for medical help, it said.

3. Prevents access to courts: The ban also prevents citizens from getting justice as all courts are functioning via video conferencing, the petition said.

4. No warning, or transparency: Citizens were not warned of the shutdown, and a copy of the order was not made public. This goes against principles laid down in Anuradha Bhasin, which stated that such order have to be publicly accessible, per the petition.

5. No evidence that internet shutdown achieves purpose: The Hooghly DM’s order also “fails the tests of reasonbleness and proportionality”. “There is no evidence that imposing an internet shutdown would achieve the purpose it seeks to achieve”, the petition says. In fact, it affects the ability to provide the right information to people, per the petition.

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West Bengal has shut the internet before — to preventing cheating and during CAA protests

In February 2020, the West Bengal government had also suspended internet services for a few hours in parts of 7 districts where the state Madhyamik (Class X) exams were held to prevent cheating and leaking of questions. The state government has imposed at least three internet shutdowns in 2020 alone, according to a tracker run by SFLC.in. Most recently, it banned mobile phones in and around COVID-19 hospitals “possibly with the intent of preventing any person from disclosing the deplorable state of affairs prevailing within the hospitals”, per SFLC.in.

Internet shutdown during CAA protests, HC ordered resumption: Internet services were suspended in 6 districts of West Bengal on December 16, amidst violent protests against the Citizenship Amendment Act. The affected districts were Malda, Uttar Dinajpur, Murshidabad, Howrah, North 24 Paraganas, and in the Baruipur and Canning sub-divisions of South 24 Parganas district. The Calcutta High Court said on December 20 that restrictions on internet services cannot be unreasonably imposed, and said that internet services should be resumed.

India leads the world in the number of internet shutdowns. Jammu & Kashmir was under a seven-month communications blackout until March 2020, and internet shutdowns were widely deployed in multiple states during protests against the Citizenship Amendment Act.

Read the PIL (WP/5425W/2020) here.

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