NEW DELHI—The Gauhati High Court on Thursday directed the state government to revoke its week-long shutdown of mobile internet in Assam by 5 pm the same day.
In its thirteen page order, the court said that though the initial shutdown may have been justified due to the possibility of mobile data being used for stoking violence, the situation had changed for the better in recent days so there was no reason to continue preventing people from accessing the internet over their phones.
The Assam government imposed a state-wide internet shutdown by issuing a notification on December 12 after protests against the controversial Citizenship (Amendment) Act 2019 peaked in the state.
The High Court’s interim order, given on Thursday, is resonating beyond Assam because it came on a day when the Delhi Police imposed mobile internet shutdown in parts of central Delhi where protests were being held by the communist parties and other civil society groups against the new citizenship law.
The shutdown in Delhi itself came three days after internet shutdowns were imposed in the Aligarh Muslim University and other parts of Uttar Pradesh and West Bengal where protests against the amended new citizenship law were picking up steam.
Another reason for the order to be noteworthy is that, unlike the Supreme Court which refused to order the lifting of internet shutdown in Jammu and Kashmir after the Narendra Modi government cited the possibility of terrorists misusing data, the Gauhati HC refused to buy generic claims from the government and directed the shutdown to be lifted.
What The Gauhati HC Said In Its Interim Order
This is why the Gauhati HC’s observations in its Thursday order explaining why it arrived at the decision are significant.
“No material has been placed by the state to demonstrate and satisfy this court that there exists, as on date, disruptions on the life of the citizens of the state with incidents of violence or deteriorating law and order situation which would not permit relaxation of mobile internet services,” a bench comprising Chief Justice Ajai Lamba and Justice Achintya Malla Bujor Barua wrote.
It further noted that, in fact, “there is an obvious shift of situation to a better state of affairs. To say the least, with the advancement of science and technology, mobile internet services now play a major role in the daily walks of life, so much so, shutdown of the mobile internet service virtually amounts to bringing life to a grinding halt.”
It clarified that it was not against internet shutdowns when they are necessary. “This is not to say that shutdown or suspension of services has to be viewed as an anathema. In given and specific situations, law permits suspension,” the two judge bench wrote in their order.
It then proceeded to explain why it was ordering the restoration of mobile internet services. “But would it be allowed to continue even when the present situation do not justify its continuance; when the situation that prevailed on the date of issuance of the initial notification is not shown to subsist as on date; when there has been an apparent shift to a state of normalcy on the lives of the citizens; when the period of acute public emergency which had necessitated suspension of mobile internet services have largely diminished , we would answer by observing that it is about time to make an interim direction for restoration of mobile internet services of all mobile service providers…,” it wrote.
“Why the Gauhati HC order is a very positive development is that it is not only on the side of free speech but also on the side of rule of law where it requires evidence and reasons and demonstration of probable cause prior to the restriction of the freedom of speech and expression and access to the internet”
- Apar Gupta, Executive Director, Internet Freedom Foundation
What Lawyers Say About The Gauhati HC Order
Expectedly, the order has attracted strong reactions from lawyers who pursue matters relating to free speech and internet freedom. Two lawyers that HuffPost India spoke with praised it strongly. One of them claimed, if someone were to approach the Delhi HC about the internet shutdown on Thursday and cite this order, it may be “helpful”.
Swati Bidhan Baruah, one of the lawyers who argued the matter in the Gauhati HC, told HuffPost India, “This interim order may help the Delhi people approach the Delhi High Court.” She acknowledged that, since it is an interim order, it can’t be as useful as a case law, but said, “Even as a reference it will be helpful.”
When asked about the concerns about potential law and order problems cited by the state, Baruah said, “If the government is saying that all these agitations and protests are only because of the rumours being spread on social media, then what is the state machinery doing? That means it is their failure. They have invested crores of public funds to establish their cyber cells. So if the government is unable to curb them then that means it is the failure of the government.” Adding further, it asked, “There may be miscreants who try to fire up sentiments, but what is the cyber cell doing?” She also rued the fact that, till Thursday evening, the internet shutdown had not been revoked despite court order.
Lawyer and executive director of the Delhi-based Internet Freedom Foundation, Apar Gupta, said, “Why the Gauhati HC order is a very positive development is that it is not only on the side of free speech but also on the side of rule of law where it requires evidence and reasons and demonstration of probable cause prior to the restriction of the freedom of speech and expression and access to the internet.”
Gupta believes all internet shutdowns in India in the recent past were illegal in peculiar ways.
“I think each internet shutdown in a different geographic region followed its own illegality. In Delhi the internet shutdown was achieved without even a reference to any underlying provision of law, through a letter issued by the DCP. In Uttar Pradesh it was achieved across all 80 districts by a tweet. In Kashmir it’s a mix of 144 orders as well as a mix of orders issued under the Telecom Suspension Rules,” he said.
But there was a similarity to them as well. “I think what unites them is that these forms of instructions to internet service providers is the unitary illegality because all of these orders usually are based on boilerplate language which does not actually disclose real reasons. And therefore, what is called in law, a case of non-application of mind or betrays a mechanical reduction of reasons. It’s not actually within the standards of legality and what’s necessary to be done prior to passing these orders,” he observed.