GAURAV SURESHBHAI VYAS Vs. STATE OF GUJARAT

JUDGEMENT

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