The Gujarat High Court has upheld the ban on Mobile Internet imposed during the Patel quota agitation in the state. A Division bench of Justices Jayant Patel and N.V. Anjaria said “Rioting had taken place at various places and the State would be zealous to control the same by applying all modes available in law”.
A Law student, had approached the High Court by filing a Public Interest Litigation seeking to declare that the blocking/banning access to Mobile Internet Services during the Patel agitation as void ab initio, ultra vires and unconstitutional. The petitioner had also sought for restraining of the respondent-State and its officers from imposing a complete or partial ban, blocking access to Internet Mobile/Broadband Services in the State of Gujarat.
The petitioner submitted that “certain social media sites could be blocked, even if the purpose was to be achieved by exercise of the power, like Twitter, Facebook, WhatsApp etc. but complete blockage of access to internet through mobile could not be said as warranted in law”
The Court rejecting the contentions of the petitioner said “What type of reasonable restriction may be upon such rights of a citizen is a different aspect altogether but such rights under Article 19(1) are not absolute but are subject to the powers of the State to put reasonable restrictions.”
Regarding the notification issued for blocking mobile internet, the Court said it “ was in the background of a specific fact situation which in view of the said competent authority was prone for aggravation leading to public tranquility and public safety and the blocking of internet mobile facility was considered to be an appropriate action”
The court also opined “The attempt made by the learned counsel for the petitioner to contend that only social media sites could be blocked and not complete blockage of the internet access through mobiles, in our view, cannot be countenanced for two reasons; one is that normally, it should be left to the authority to find out its own mechanism for controlling the situation and the second is that there are 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 more effective approach found by the competent authority.”
IN THE HIGH COURT OF GUJARAT AT AHMEDABADWRIT PETITION (PIL) NO. 191 of 2015
GAURAV SURESHBHAI VYAS....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 15/09/2015
1. The petitioner who is a Law student, claiming to be a publicspirited
person has approached to this Court by invoking PIL
jurisdiction of this Court seeking to declare that the action and
the notification at Annexure:A issued by the State
Government/respondent no.6 herein of blocking/banning access
to Mobile Internet Services during the relevant period as void
ab initio, ultra vires and unconstitutional. The petitioner has
also prayed to issue appropriate writ, permanently restraining
the respondent-State and its officers from imposing a complete
or partial ban, blocking access to Internet Mobile/Broadband
Services in the State of Gujarat, since as per the petitioner, it is
violative of Articles 14, 19 and 21 of the Constitution and
consequently beyond the powers of the State Government
under the relevant laws. The petitioner has also prayed for
additional relief to hold that the respondent no.1 is vicariously
liable and respondent no. 6 is personally liable for the
unconstitutional and arbitrary action of banning Mobile Internet
access and for causing loss as stated in paragraph 4.8 to the
nation and further appropriate directions to safeguard to the
fundamental rights are also prayed for.
2. We have heard Mr. Asim S. Pandya, learned counsel appearing
with Mr. Manan Bhatt and Mr. Jai Shah, learned counsels
appearing for the petitioner and we have also heard Ms.
Manisha L. Shah, learned Government Pleader, appearing for
the respondent nos. 1, 5 and 6 upon advance copy.
3. The contention raised on behalf of the petitioner was that the
competent authority could not resort to exercise of power
under Section 144 of the Code of Criminal Procedure, 1973
( hereafter to be referred to as “ the Code”) and if any power
was available, such was only under Section 69A of the
Information Technology Act, 2000 (hereafter to be referred to
as “the Act”). The second contention was that wholesome
exercise of power under Section 144 of the Code in any case
was not permissible, because if we consider the notification, it
is for alleged misuse of social media. As per the learned
counsel, certain social media sites could be blocked, even if the
purpose was to be achieved by exercise of the power, like
Twitter, Face Book, WhatsApp etc. but complete blockage of
access to internet through mobile could not be said as
warranted in law. As per the petitioner, except the broadband,
all internet facilities on mobile phones were blocked, hence
such would not even meet with the minimal restriction to the
fundamental rights guaranteed under Article 19(1) of the
Constitution. It was submitted that even if the exercise of
power under Section 144 of the Code has lived the life, such
would not make the petition infructuous nor it can be said to be
a mere academic exercise. When a fundamental right is
breached and even if challenge is at a later stage, the Court
would not decline examination of the challenge merely on the
ground that the notification has lived the life. It was also
submitted that if such action is found to be bad in law and
declared as illegal, in the recent future, when the apprehension
has been voiced by the petitioner, such power may not be
exercised again which may result into the breach of
fundamental right. It was submitted that whenever alleged
breach of fundamental right is brought before the Court, it
would be for the government officials to satisfy this Court that
circumstances did exist and they remained within the bounds of
law. But as per the learned counsel for the petitioner, in the
absence thereof, the Court may not proceed on the basis that
restriction of fundamental right was valid in law. As regards the
apprehended action on the part of the respondent-State and its
officials, it was submitted that even if there is no actual breach
of fundamental right, but if there is imminent danger or
apprehension, the Court may entertain the challenge to the
apprehended action also and therefore, the petition may not be
termed as on hypothesis or surmises. It was submitted that
therefore, this Court may interfere. The learned counsel relied
upon various decisions of the Apex Court, however, we think it
appropriate to refer to those only which as per our view are
relevant for considering the controversy.
4. On behalf of the respondent-State and its officials, Ms. Manisha
L. Shah, the learned Government Pleader, by relying upon the
voluminous material contended that there was sufficient valid
ground for exercise of power under Section 144 of the Code. It
was submitted that had the powers not been exercised under
Section 144 for blockage of internet facility on mobile phones,
possibly, peace could not have been restored with the other
efforts made by the State for maintenance of the law and
order. She submitted that the petitioner is not having all the
details for exercise of power and the ground raised that
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 and is made part of the record which is
tendered before the Court. On the question of law, the learned
Government Pleader contended that exercise of power under
Section 144 of the Code is operating for general control of the
situation, more particularly in case of rioting, wherein, degree
of disturbance of the public order will be huge. Whereas Section
69A of the Act operates for certain contingency and for
blockage of certain sites only. It was submitted that since the
State and its competent authority found that unless the
blockage of the internet facility on mobile phones is made, the
situation may be worsened or the State may not be in a
position to achieve the object of maintaining public tranquility
and curbing riot, the power under Section 144 of the Code was
exercised. The learned Government Pleader further contended
that it is difficult to visualize the situation which may happen
on the day of Dandi Yatra or thereafter which is stated by the
petitioner. She submitted that normally such power under
Section 144 of the Code is exercised as a last resort or when it
is extremely required. On the aspect of minimal restriction, the
learned Government Pleader submitted that it was not that
internet facility was completely banned or blocked, but in order
to see that there is internet access available to people
wherever broadband facility is available or wi-fi facility is
available, such was not banned and therefore, she submitted
that it is not a matter where competent authority exercised
power in an arbitrary manner without keeping in view the
minimal restriction on the fundamental rights. She submitted
that normally, it should be left to the subjective satisfaction on
the objective material by the competent authority for exercise
of the power under Section 144 of the Code. She, therefore
submitted that the petition may not be entertained by this
Court.
5. At the outset, we may record that since the contention of no
power has been canvassed by taking support of Section 69A of
the Act in contradiction with the provisions of Section 144 of
the Code, we find it appropriate to refer to reproduce Section
144 of the Code and Section 69A of the Act, which are as
under:
“144. Power to issue order in urgent cases of
nuisance or apprehended danger.--(1) In cases
where, in the opinion of a District Magistrate, a Subdivisional
Magistrate or any other Executive Magistrate
specially empowered by the State Government in this
behalf, there is sufficient ground for proceeding under
this section and immediate prevention or speedy remedy
is desirable, such Magistrate may, by a written order
stating the material facts of the case and served in the
manner provided by section 134, direct any person to
abstain from a certain act or to take certain order with
respect to certain property in his possession or under his
management, if such Magistrate considers that such
direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety, or a
disturbance of the public tranquility, or a riot, or an
affray.
(2) An order under this section may, in cases of
emergency or in cases where the circumstances do not
admit of the serving in due time of a notice upon the
person against whom the order is directed, be passed ex
parte.
(3) An order under this section may be directed to a
particular individual, or to persons residing in a particular
place or area, or to the public generally when frequenting
or visiting a particular place or area.
(4) No order under this section shall remain in force for
more than two months from the making thereof:
Provided that, if the State Government considers it
necessary so to do for preventing danger to human life,
health or safety or for preventing a riot or any affray, it
may, by notification, direct that an order made by a
Magistrate under this section shall remain in force for
such further period not exceeding six months from the
date on which the order made by the Magistrate would
have, but for such order, expired, as it may specify in the
said notification.
(5) Any Magistrate may, either on his own motion or on
the application of any person aggrieved, rescind or alter
any order made under this section, by himself or any
Magistrate subordinate to him or by his predecessor-inoffice.
(6) The State Government may, either on its own motion
or on the application of any person aggrieved, rescind or
alter any order made by it under the proviso to subsection
(4).
(7) Where an application under sub-section (5), or subsection
(6) is received, the Magistrate, or the State
Government, as the case may be, shall afford to the
applicant an early opportunity of appearing before him or
it, either in person or by pleader and showing cause
against the order, and if the Magistrate or the State
Government, as the case may be, rejects the application
wholly or in part, he or it shall record in writing the
reasons for so doing.”
6. The language used under sub-section (1) of Section 144 is “to
prevent, or tends to prevent, obstruction, annoyance or injury
to any person lawfully employed or danger to human life,
health or safety, or a disturbance of the public tranquility, or a
riot, or an affray”. As per the aforesaid provision, power may be
exercised if any of the aforesaid contingencies occurs.
7. Section 69A of the Information Technology Act, 2000 reads as
under:-
“69A. Power to issue directions for blocking for
public access of any information through any
computer resource.-(1) Where the Central Government
or any of its officer specially authorised by it in this
behalf is satisfied that it is necessary or expedient so to
do, in the interest of sovereignty and integrity of India,
defence of India, security of the State, friendly relations
with foreign States or public order or for preventing
incitement to the commission of any cognizable offence
relating to above, it may subject to the provisions of subsection
(2) for reasons to be recorded in writing, by
order, direct any agency of the Government or
intermediary to block for access by the public or cause to
be blocked for access by the public any information
generated, transmitted, received, stored or hosted in any
computer resource.
(2) The procedure and safeguards subject to which such
blocking for access by the public may be carried out,
shall be such as may be prescribed.
(3) The intermediary who fails to comply with the
direction issued under sub-section (1) shall be punished
with an imprisonment for a term which may extend to
seven years and shall also be liable to fine.”
8. The aforesaid Section shows that the situations envisaged are,
“in the interest of sovereignty and integrity of India, defence of
India, security of the State, friendly relations with foreign States
or public order or for preventing incitement to the commission
of any cognizable offence relating to above”. Further a direction
can be issued under Section 69A for blockage of public access
to such informations and it may also be relating to “any
information generated, transmitted, received, stored or posted
in any computer resource”.
9. If the comparison of both the sections in the field of operations
is made, barring certain minor overlapping more particularly for
public order, one can say that the area of operation of Section
69A is not the same as that of Section 144 of the Code. 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. Under the
circumstances, we do not find that the contention raised on
behalf of the petitioner that the resort to only Section 69A was
available and exercise of power under Section 144 of the Code
was unavailable, can be accepted.
10.On the aspect of sufficiency of material to exercise power under
Section 144 of the Code, it is hardly required to be stated that
this Court would not be exercising the appellate power. But the
Court may examine if the power is exercised in arbitrary
manner or there is perverse exercise of the power without
there being any material whatsoever. The material produced on
behalf of the respondent-State and the competent authority,
even if considered at the first glance, would go to show that
they were germane to exercise of the power and hence, it could
not be stated that the objective materials were not at all
considered. Further, once the objective material is considered,
this Court would not go into the sufficiency of the material, but
at the same time, on objective materials being considered
together, if leads the authority to exercise the power with
prudence coupled with the public duty, the same, in our view,
should be sufficient. Be it noted that during the relevant period,
the disturbances went on throughout the State and there were
serious disturbances of law and order. Rioting had taken place
at various places and the State would be zealous to control the
same by applying all modes available in law. We do not want
to express any further on the said aspect but leave it at that by
observing that it cannot be said that the powers were exercised
in arbitrary manner nor it can be said that there was perverse
exercise of the power without there being any objective
material. Hence the said contention fails.
11.On the aspect of minimal damage, it does appear that the
competent authority had taken care, namely, of blocking of
internet facility only on mobile phones and not on broadband
facility. The attempt made by the learned counsel for the
petitioner to contend that only social media sites could be
blocked and not complete blockage of the internet access
through mobiles, in our view, cannot be countenanced for two
reasons; one is that normally, it should be left to the authority
to find out its own mechanism for controlling the situation and
the second is that there are 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 more effective approach found by the competent authority.
In any case, it was not complete ban on the internet access, but
in comparison to the access available to internet through
mobile, the same was only prohibited, whereas access to
internet through broadband and wi-fi facility was permitted or
rather was not blocked.
12. Under the circumstances, we are not impressed by the
contention that the authorities were not conscious nor were
they completely ignorant of the aspect of minimal restriction.
Further, as observed earlier, each of the situations in exercise
of the power under Section 144 of the Code may differ. Had
there been complete ban on internet access, may be through
mobiles or may be through wi-fi, the matter might stand on
different footing and different considerations. But such was not
the fact situation. Further, when the authority itself has taken
care on the aspects of minimal restriction, we do not find that
this Court will have a microscopic examination website wise or
each of the sites available on internet. Hence, the said
contention cannot be accepted.
13.On the aspect of apprehended imminent breach of fundamental
rights, we may record that the petitioner mainly relied upon the
decisions which were pertaining to the imminent danger of
breach of fundamental rights of personal liberty keeping in view
Article 21 of the Constitution. The degree of protection of the
right under Article 21 of the Constitution cannot be fully
equated with the protection of fundamental right available to a
citizen under Article 19(1) of the Constitution since the rights
under Article 19(1) are subject to reasonable restrictions. What
type of reasonable restriction may be upon such rights of a
citizen is a different aspect altogether but such rights under
Article 19(1) are not absolute but are subject to the powers of
the State to put reasonable restrictions. In any case, when as
per the observations made by us herein above, the power
exercised under Article 144 of the Code is not found by us
beyond the scope of Section 144 of the Code, we cannot
proceed on the basis that power, if situation so demands, under
Section 144 of the Code, shall be exercised in arbitrary manner.
What will be the situation in future and what will be the degree
of the disturbance of the law and order or what will be the
quantum and number of rioting etc. in a given situation cannot
be visualized on the ground as stated by the learned counsel
for the petitioner. At this stage, all these questions can only be
said to be in the field of hypothesis and surmises. We do not
see that the basis or the demonstration of reasonable
apprehension as sought to be canvassed is sufficient at this
stage for us to intervene even before the power is exercised.
We only find it appropriate to observe that the competent
authority will only exercise power within the limits of law on the
basis of the objective material and shall not exercise power in
arbitrary manner or in perverse manner without there being
any appropriate objective material.
14. Learned counsel for the petitioner relied on decision in
Maneka Gandhi Vs Union of India [AIR 1978 SC 597] to
submit that the Apex Court held in that case that violation of
fundamental right under Article 19(1)(a) of the Constitution
could also travel into the realm of violation of other
fundamental rights like Articles 21 and 14 and that principle of
trinity vis-a-vis enforcement of all the three fundamental rights
was propounded by the Court. In respect of the contention that
powers under Section 144 of the Code could not have been
resorted to, the reliance was made upon the decision of
Bombay High Court In re Ardeshir Phirozshaw Murzban
[ A.I.R. 1940 Bom. 42], with the further contention that the
Bombay High Court judgment is binding on this Court. Similarly
the reliance was also made upon a Sikkim High Court decision
in Gopalji Prasad Vs State of Sikkim [1981 Cri. LJ 60]. In
order to assert that right to free speech and expression
guaranteed under Article 19(1)(a) of the Constitution can be
used by the mode of Internet use, he relied on recent decision
of the Apex Court in case of Shreya Singhal Vs Union of
India [(2015) 5 SCC 1] wherein the Supreme Court struck
down Section 66-A of the Information Technology Act as putting
unreasonable restriction on the right to free speech. The said
decision was in different context where vires of Section 66-A
was considered by the Apex Court and it was held that the said
provision was arbitrary and putting excessive restrictions on
the enjoyment of fundamental right to free speech.
15.The Notification issued by the Commissioner of Police, City of
Ahmedabad, in the present case was in the background of a
specific fact situation which in view of the said competent
authority was prone for aggravation leading to public tranquility
and public safety and the blocking of internet mobile facility
was considered to be an appropriate action. Yet another
decision in Ramlila Maidan Incident, In RE [2012 (5) SCC
1] was relied on by learned advocate for the petitioner to
vehemently contend that in that case the Supreme Court came
down heavily on the authorities for invoking Section 144 of the
Code. Learned advocate relied on various paragraphs and
attempted to submit that Section 144, Cr.P.C. could not be
invoked to smother the enjoyment of fundamental right. The
facts of that case were entirely different where the order was
passed under Section 144 of the Code at 11.30 p.m. and the
officers of police were shown to have unleashed lathi charge on
the persons and devotees who were sleeping at the Ramlila
Maidan. The Supreme Court found that the action of the
policemen was brutal and arbitrary. It was in that background
of fact situation that the Supreme Court did not approve
issuance of order under Section 144 of the Code.
16. In view of the above, we do not find any case made out
for interference. Hence, the petition is dismissed.
(JAYANT PATEL, ACJ.)
(N.V.ANJARIA, J.)
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