Internet Ban during Patel quota agitation upheld by Gujarat HC

7/17/2019 Internet Ban during Patel quota agitation upheld by Gujarat HC

1/15

C/WPPIL/191/2015 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

WRIT PETITION (PIL) NO. 191 of 2015

==========================================================

GAURAV SURESHBHAI VYAS....Applicant(s)

Versus

STATE OF GUJARAT & 5....Opponent(s)

==========================================================

Appearance:

MR ASIM PANDYA with MR J S SHAH & MR MANAN V BHATT, ADVOCATE

for Applicant

MS ML SHAH, GOVERNMENT PLEADER for the Opponent(s) No. 1 ,5 & 6==========================================================

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.JAYANT PATELandHONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 15/09/2015

ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE

MR. JAYANT PATEL)

1. The petitioner who is a Law student, claiming to be a public-

spirited person has approached to this Court by invoing !"L

#urisdiction o$ this Court seeing to declare that the action and

the noti$ication at Anne%ure:A issued by the &tate

'overnment(respondent no)* herein o$ blocing(banning access

to Mobile "nternet &ervices during the relevant period as void

ab initio, ultra vires and unconstitutional) The petitioner has

also prayed to issue appropriate writ, permanently restraining

Page 1of 15

Page 1 ofNIC Created On Thu Sep 17 08:11:45 IST 201515


2/15


the respondent-&tate and its o$$icers $rom imposing a complete

or partial ban, blocing access to "nternet Mobile(+roadband

&ervices in the &tate o$ 'u#arat, since as per the petitioner, it is

violative o$ Articles , . and / o$ the Constitution and

conse0uently beyond the powers o$ the &tate 'overnment

under the relevant laws) The petitioner has also prayed $or

additional relie$ to hold that the respondent no) is vicariously

liable and respondent no) * is personally liable $or the

unconstitutional and arbitrary action o$ banning Mobile "nternet

access and $or causing loss as stated in paragraph )1 to the

nation and $urther appropriate directions to sa$eguard to the

$undamental rights are also prayed $or)

/) 2e have heard Mr) Asim &) !andya, learned counsel appearing

with Mr) Manan +hatt and Mr) 3ai &hah, learned counsels

appearing $or the petitioner and we have also heard Ms)

Manisha L) &hah, learned 'overnment !leader, appearing $or

the respondent nos) , 4 and * upon advance copy)

3. The contention raised on behal$ o$ the petitioner was that the

competent authority could not resort to e%ercise o$ power

under &ection o$ the Code o$ Criminal !rocedure, .56

7 herea$ter to be re$erred to as 8 the Code9 and i$ any power

was available, such was only under &ection *.A o$ the

"n$ormation Technology Act, /;;; 7herea$ter to be re$erred to

as 8the Act9) The second contention was that wholesome

e%ercise o$ power under &ection o$ the Code in any case

Page 2of 15



3/15


was not permissible, because i$ we consider the noti$ication, it

is $or alleged misuse o$ social media) As per the learned

counsel, certain social media sites could be bloced, even i$ the

purpose was to be achieved by e%ercise o$ the power, lie

Twitter,


4/15


law) +ut as per the learned counsel $or the petitioner, in the

absence thereo$, the Court may not proceed on the basis that

restriction o$ $undamental right was valid in law) As regards the

apprehended action on the part o$ the respondent-&tate and its

o$$icials, it was submitted that even i$ there is no actual breach

o$ $undamental right, but i$ there is imminent danger or

apprehension, the Court may entertain the challenge to the

apprehended action also and there$ore, the petition may not be

termed as on hypothesis or surmises) "t was submitted that

there$ore, this Court may inter$ere) The learned counsel relied

upon various decisions o$ the Ape% Court, however, we thin it

appropriate to re$er to those only which as per our view are

relevant $or considering the controversy)

4. On behal$ o$ the respondent-&tate and its o$$icials, Ms) Manisha

L) &hah, the learned 'overnment !leader, by relying upon the

voluminous material contended that there was su$$icient valid

ground $or e%ercise o$ power under &ection o$ the Code) "t

was submitted that had the powers not been e%ercised under

&ection $or blocage o$ internet $acility on mobile phones,

possibly, peace could not have been restored with the other

e$$orts made by the &tate $or maintenance o$ the law and

order) &he submitted that the petitioner is not having all the

details $or e%ercise o$ power and the ground raised that

noti$ication $or blocing o$ internet $acility on mobile phones

$rom /4thAugust /;4 onwards was without there being any

Page 4of 15



5/15


noti$ication, is not correct) &he submitted that the noti$ication

was already issued and is made part o$ the record which is

tendered be$ore the Court) On the 0uestion o$ law, the learned

'overnment !leader contended that e%ercise o$ power under

&ection o$ the Code is operating $or general control o$ the

situation, more particularly in case o$ rioting, wherein, degree

o$ disturbance o$ the public order will be huge) 2hereas &ection

*.A o$ the Act operates $or certain contingency and $or

blocage o$ certain sites only) "t was submitted that since the

&tate and its competent authority $ound that unless the

blocage o$ the internet $acility on mobile phones is made, the

situation may be worsened or the &tate may not be in a

position to achieve the ob#ect o$ maintaining public tran0uility

and curbing riot, the power under &ection o$ the Code was

e%ercised) The learned 'overnment !leader $urther contended

that it is di$$icult to visuali=e the situation which may happen

on the day o$ >andi ?atra or therea$ter which is stated by the

petitioner) &he submitted that normally such power under

&ection o$ the Code is e%ercised as a last resort or when it

is e%tremely re0uired) On the aspect o$ minimal restriction, the

learned 'overnment !leader submitted that it was not that

internet $acility was completely banned or bloced, but in order

to see that there is internet access available to people

wherever broadband $acility is available or wi-$i $acility is

available, such was not banned and there$ore, she submitted

Page 5of 15



6/15


that it is not a matter where competent authority e%ercised

power in an arbitrary manner without eeping in view the

minimal restriction on the $undamental rights) &he submitted

that normally, it should be le$t to the sub#ective satis$action on

the ob#ective material by the competent authority $or e%ercise

o$ the power under &ection o$ the Code) &he, there$ore

submitted that the petition may not be entertained by this

Court)

4) At the outset, we may record that since the contention o$ no

power has been canvassed by taing support o$ &ection *.A o$

the Act in contradiction with the provisions o$ &ection o$

the Code, we $ind it appropriate to re$er to reproduce &ection

o$ the Code and &ection *.A o$ 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 Sub-

divisional Magistrate or any other !ecutive Magistrate

specially e"powered by the State #overn"ent in this

behalf, there is sufficient ground for proceeding under

this section and i""ediate prevention or speedy re"edy

is desirable, such Magistrate "ay, by a written order

stating the "aterial facts of the case and served in the

"anner provided by section 1$%, direct any person to

abstain fro" a certain act or to ta&e certain order with

respect to certain property in his possession or under his

"anage"ent, if such Magistrate considers that such

direction is li&ely to prevent, or tends to prevent,

Page 6of 15



7/15


obstruction, annoyance or in'ury to any person lawfully

e"ployed, or danger to hu"an life, health or safety, or a

disturbance of the public tranuility, or a riot, or an

affray(*) +n order under this section "ay, in cases of

e"ergency or in cases where the circu"stances do not

ad"it of the serving in due ti"e of a notice upon the

person against who" the order is directed, be passed e!

parte

($) +n order under this section "ay be directed to a

particular individual, or to persons residing in a particular

place or area, or to the public generally when freuenting

or visiting a particular place or area

(%) o order under this section shall re"ain in force for

"ore than two "onths fro" the "a&ing thereof

.rovided that, if the State #overn"ent considers it

necessary so to do for preventing danger to hu"an life,

health or safety or for preventing a riot or any affray, it

"ay, by notification, direct that an order "ade by a

Magistrate under this section shall re"ain in force for

such further period not e!ceeding si! "onths fro" the

date on which the order "ade by the Magistrate would

have, but for such order, e!pired, as it "ay specify in the

said notification

(/) +ny Magistrate "ay, either on his own "otion or on

the application of any person aggrieved, rescind or alter

any order "ade under this section, by hi"self or any

Magistrate subordinate to hi" or by his predecessor-in-

office

(0) he State #overn"ent "ay, either on its own "otion

or on the application of any person aggrieved, rescind or

alter any order "ade by it under the proviso to sub-

section (%)

Page 7of 15



8/15


(2) 3here an application under sub-section (/), or sub-

section (0) is received, the Magistrate, or the State

#overn"ent, as the case "ay be, shall afford to the

applicant an early opportunity of appearing before hi" orit, either in person or by pleader and showing cause

against the order, and if the Magistrate or the State

#overn"ent, as the case "ay be, re'ects the application

wholly or in part, he or it shall record in writing the

reasons for so doing4

*) The language used under sub-section 7 o$ &ection is 8to

prevent, or tends to prevent, obstruction, annoyance or in#ury

to any person law$ully employed or danger to human li$e,

health or sa$ety, or a disturbance o$ the public tran0uility, or a

riot, or an a$$ray9) As per the a$oresaid provision, power may be

e%ercised i$ any o$ the a$oresaid contingencies occurs)

5) &ection *.A o$ the "n$ormation Technology Act, /;;; reads as

under:-

69A. Power to issue directions for blocking forpublic access of any information through anycomputer resource.-(1) 3here the 5entral #overn"entor any of its officer specially authorised by it in thisbehalf is satisfied that it is necessary or e!pedient so todo, in the interest of sovereignty and integrity of India,

defence of India, security of the State, friendly relationswith foreign States or public order or for preventingincite"ent to the co""ission of any cogni6able offencerelating to above, it "ay sub'ect to the provisions of sub-section (*) for reasons to be recorded in writing, byorder, direct any agency of the #overn"ent orinter"ediary to bloc& for access by the public or cause tobe bloc&ed for access by the public any infor"ationgenerated, trans"itted, received, stored or hosted in anyco"puter resource

(*) he procedure and safeguards sub'ect to which suchbloc&ing for access by the public "ay be carried out,

Page 8of 15



9/15


shall be such as "ay be prescribed

($) he inter"ediary who fails to co"ply with thedirection issued under sub-section (1) shall be punishedwith an i"prison"ent for a ter" which "ay e!tend to

seven years and shall also be liable to fine4

1) The a$oresaid &ection shows that the situations envisaged are,

8in the interest o$ sovereignty and integrity o$ "ndia, de$ence o$

"ndia, security o$ the &tate, $riendly relations with $oreign &tates

or public order or $or preventing incitement to the commission

o$ any cogni=able o$$ence relating to above9)


10/15


10.On the aspect o$ su$$iciency o$ material to e%ercise power under

&ection o$ the Code, it is hardly re0uired to be stated that

this Court would not be e%ercising the appellate power) +ut the

Court may e%amine i$ the power is e%ercised in arbitrary

manner or there is perverse e%ercise o$ the power without

there being any material whatsoever) The material produced on

behal$ o$ the respondent-&tate and the competent authority,

even i$ considered at the $irst glance, would go to show that

they were germane to e%ercise o$ the power and hence, it could

not be stated that the ob#ective materials were not at all

considered)


11/15


11.On the aspect o$ minimal damage, it does appear that the

competent authority had taen care, namely, o$ blocing o$

internet $acility only on mobile phones and not on broadband

$acility) The attempt made by the learned counsel $or the

petitioner to contend that only social media sites could be

bloced and not complete blocage o$ the internet access

through mobiles, in our view, cannot be countenanced $or two

reasonsB one is that normally, it should be le$t to the authority

to $ind out its own mechanism $or controlling the situation and

the second is that there are number o$ social media sites which

may not be re0uired to be bloced independently or

completely) +ut i$ internet access through mobiles is bloced by

issuing directions to the mobile companies, such may possibly

be more e$$ective approach $ound by the competent authority)

"n 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-$i $acility was permitted or

rather was not bloced)

/) @nder the circumstances, we are not impressed by the

contention that the authorities were not conscious nor were

they completely ignorant o$ the aspect o$ minimal restriction)


12/15


mobiles or may be through wi-$i, the matter might stand on

di$$erent $ooting and di$$erent considerations) +ut such was not

the $act situation)


13/15


2hat will be the situation in $uture and what will be the degree

o$ the disturbance o$ the law and order or what will be the

0uantum and number o$ rioting etc) in a given situation cannot

be visuali=ed on the ground as stated by the learned counsel

$or the petitioner) At this stage, all these 0uestions can only be

said to be in the $ield o$ hypothesis and surmises) 2e do not

see that the basis or the demonstration o$ reasonable

apprehension as sought to be canvassed is su$$icient at this

stage $or us to intervene even be$ore the power is e%ercised)

2e only $ind it appropriate to observe that the competent

authority will only e%ercise power within the limits o$ law on the

basis o$ the ob#ective material and shall not e%ercise power in

arbitrary manner or in perverse manner without there being

any appropriate ob#ective material)

14. Learned counsel $or the petitioner relied on decision in

Maneka Gandhi Vs Union o India !AIR "#$% SC $' to

submit that the Ape% Court held in that case that violation o$

$undamental right under Article .77a o$ the Constitution

could also travel into the realm o$ violation o$ other

$undamental rights lie Articles / and and that principle o$

trinity vis-a-vis en$orcement o$ all the three $undamental rights

was propounded by the Court) "n respect o$ the contention that

powers under &ection o$ the Code could not have been

resorted to, the reliance was made upon the decision o$

+ombay igh Court In (e A(deshi( Phi(o)sha* M+(),an

Page 13of 15



14/15


! A.I.R. "#- Bo/. -0'1 with the $urther contention that the

+ombay igh Court #udgment is binding on this Court) &imilarly

the reliance was also made upon a &iim igh Court decision

in Go2a34i P(asad Vs S5a5e o Sikki/ !"#%" C(i. LJ 6') "n

order to assert that right to $ree speech and e%pression

guaranteed under Article .77a o$ the Constitution can be

used by the mode o$ "nternet use, he relied on recent decision

o$ the Ape% Court in case o$ Sh(e7a Sin8ha3 Vs Union o

India !90"&: & SCC "'wherein the &upreme Court struc

down &ection **-A o$ the "n$ormation Technology Act as putting

unreasonable restriction on the right to $ree speech) The said

decision was in di$$erent conte%t where vires o$ &ection **-A

was considered by the Ape% Court and it was held that the said

provision was arbitrary and putting e%cessive restrictions on

the en#oyment o$ $undamental right to $ree speech)

15.The oti$ication issued by the Commissioner o$ !olice, City o$

Ahmedabad, in the present case was in the bacground o$ a

speci$ic $act situation which in view o$ the said competent

authority was prone $or aggravation leading to public tran0uility

and public sa$ety and the blocing o$ internet mobile $acility

was considered to be an appropriate action) ?et another

decision in Ra/3i3a Maidan In;iden51 In RE !0"0 9&: SCC

"' was relied on by learned advocate $or the petitioner to

vehemently contend that in that case the &upreme Court came

down heavily on the authorities $or invoing &ection o$ the

Page 14of 15



15/15


Code) Learned advocate relied on various paragraphs and

attempted to submit that &ection , Cr)!)C) could not be

invoed to smother the en#oyment o$ $undamental right) The

$acts o$ that case were entirely di$$erent where the order was

passed under &ection o$ the Code at )6; p)m) and the

o$$icers o$ police were shown to have unleashed lathi chargeon

the persons and devotees who were sleeping at the Ramlila

Maidan) The &upreme Court $ound that the action o$ the

policemen was brutal and arbitrary) "t was in that bacground

o$ $act situation that the &upreme Court did not approve

issuance o$ order under &ection o$ the Code)

*) "n view o$ the above, we do not $ind any case made out

$or inter$erence) ence, the petition is dismissed)

9JAYANT PATEL1 ACJ.:

9N.V.ANJARIA1 J.:pirzada

Page 15of 15

Documents

Internet Ban during Patel quota agitation upheld by Gujarat HC