Section 144 of CrPC - online curfew

Last month, the Patel community's demand for job quotas dramatically caught the nation's attention. Their agitation in Gujarat reminded of the dangers of Mandal politics, in which castes and communities stir and shake the state apparatus to secure reservations in education and government jobs. Though the wool of reservation is an old fabric, it was newly dyed by 22-year-old Hardik Patel who used social media platforms as well as Internet-based messaging services to effectively mobilize large crowds. When the crowds turned violent, the Gujarat government swiftly blocked public access to mobile Internet services for close to a week. This was legally implemented under Section 144 of the Code of Criminal Procedure, which gives the state government broad powers to prevent unlawful assemblies of people. This provision has been used in the past to impose curfews as a means to prevent protests that can lead to unrest or riots. Blocking access to the Internet under Section 144 is a novelty of sorts. Noticing this peculiarity, a PIL challenging the Internet ban was filed in the Gujarat High Court. The court has dismissed the petition and upheld the action of the state government. To the high court, this was an extraordinary exercise of power that was necessary due to the extraordinary challenge posed to law and order by the Patels' agitation.

Criticism

However, this reasoning ignores several legal provisions and by itself is out of the ordinary. Mobile Internet services are made available to Indian users through private telecom companies that are licensed by the Central government to do so. The Central government is the trustee of the radio frequencies and spectrum and grants licences to private operators under the Telegraph Act. There is a limited role for the state governments in these matters as issues to do with the telegraph come under the Union list under Entry 31. In exercise of these powers, provisions under the Telegraph Act as well as in the telecom licences allow the Central government to prohibit connectivity services, including the Internet. Quite simply, it is the Central government that has the power to directly block Internet services, not the state government. This elementary principle of telecommunications regulation was completely ignored by the Gujarat High Court while hearing the PIL.

The court also seems to have employed a faulty reading of a legal provision that reserves the power to block for the Central government. This power, defined in Section 69A of the Information Technology Act, reflects a conscious decision by the legislature to limit the power to block only to specific websites and pages. It cannot be used to impose a total curfew on mobile Internet access. Therefore, Section 69A can be used during social unrest to block specific webpages, as was done during the anti-Northeast disturbances in Bangalore in 2012 and the communal clashes in Muzaffarnagar in 2013.

Court Justification

According to the Gujarat High Court, Section 69A of the Information Technology Act and Section 144 of the CrPC are independent of each other, and under the former websites and webpages can be blocked while access to the Internet can be prevented under the latter. Such narrow technical distinctions in language once again facilitated extraordinary deference to a state government.

The Gujarat High Court's verdict opens up the possibility of state governments employing an otherwise general power to prevent unlawful assemblies to block Internet access. This is not only legally extraordinary, but also repudiates common sense. The use of internet services on mobile phone is not just for social media but increasingly for e-commerce & hence is in some sense an essential service. They should not be banned to merely to contain agitation. The disruption caused by such a ban in the lives of ordinary, law abiding citizens far outweighs the presumed benefits to law & order. Such a ban only adds to the feeling of a society under siege.

By: Dr. Vivek Rana