October 28, 2021

Critical Analysis of Internet Shutdowns in India and their Impact on Fundamental Rights

“Without freedom of speech there is no modern world, just a barbaric one.”

By Ai Weiwei

Internet Shutdowns are also known as blackouts or kill switches where an entity, like a government or a non-state actor, intentionally disrupts access to the internet or certain apps, in order to control the flow of information in a country or a region.[1]  Over the years, these mass internet blackouts have gained immense attraction due to their controversial stature in the Indian legal system. There are various routes and procedures which govern the undertaking of an Internet Shutdown in India which can be read under the rules of the Indian Telegraph Act, 1885.[2] According to this Act, it is stipulated that only the Home Secretary of the Union or a State can pass an order pertaining to an internet blackout, and that the order must include the reasons for this decision. This order then needs to be forwarded to a review committee the day after it is issued, and must be reviewed by the committee within five days to assess its compliance with Section 5(2) of The Telegraph Act, under which the government has the power to block the transmission of messages during a public emergency or for public safety. In the case of the central government, the review committee comprises of the Cabinet Secretary and the Secretaries of the Departments of Legal Affairs and Telecommunications. In the case of states, the committee comprises of the Chief Secretary, Secretary, Law or Legal Remembrance In-Charge, Legal Affairs, and a Secretary to the state government (other than the Home Secretary).[3] There are various loopholes and gaps in this Act which are often misused or not properly adhered to which leads to an immediate and an uncalled-for internet blackout. The process of implementing internet shutdowns in India lacks transparency and proper justification even after being governed by Acts and Statues. There is a legislative gap created through the absence of transparency and other prevailing challenges under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 [4] and its amendment in 2020,[5] which violate the fundamental right to exercise freedom of speech and expression under Article 19 (1) (a) of the Constitution of India.[6]

With the rapid modernisation of India, we have also seen a rise in the number of tele users and internet operators which has created a digital sphere for Indian citizens to interact in. This has not only increased the dependence on Internet as a forum for communication but has also led to an information spread and exchange medium for each individual to operate with. Furthermore, it is imperative to understand the existence of Right to Internet as a fundamental right under Article 19 (1) (a) of the Indian Constitution and how the current scheme of Internet Shutdowns inherently violates this right. The United Nations Human Rights Council adopted a resolution passed on 1st July, 2016 which encompasses the rights of protection and enjoyment of the Internet by an individual.[7] In this resolution in paragraph 10, it is stated that UN strictly condemns any form of disruption which may prevent an individual from seeking information online or accessing their Right to Internet. The resolution gives way to a better understanding as to why the Right to Internet is very crucial to any individual by emphasising on the development, increase in education quality and modernisation of the world. There is also an emphasis on all party states to not be equivocal about their stance and procedures while taking strict measures such as internet shutdowns and provide better clarity and transparency to the general population at large while implementing such measures. Furthermore, this charter also states as to how the issue at large is to combat worldwide hatred over the internet and advocate stronger moral values instead of instigating violence and simply denying this Right to Internet. Internet shutdowns are seen as a form of suppression of voices which may otherwise be never heard and this vanquishes the publicization of internal struggles that one may face in their daily lives, further leading to them cohabiting in an uncared-for environment. Today, internet has not just become a forum for expressing emotions and embarking on a courageous path but it is also a forum used to help others in need especially in a devastating era of COVID 19. There have been various mental health platforms that were created over the past year so as to provide support to the ones in need and an internet shutdown results in detaching such a helping hand from the ones suffering.

On 5th August 2019, an ‘internet and communications’ blackout was imposed in Jammu and Kashmir on accounts of revocation of Article 370 of the Indian Constitution. During this, various other measures were taken to limit communication of the region in question and the Indian Subcontinent at large such as restricting travel within the area, arresting a large number of citizens which included politicians and other powerful figures. This blackout lasted till January 2020, wherein a leeway was given for the 26th January celebrations, which only had access to 2G connections and SMS features. In August 2020, a new curfew was implemented even though the aftermath of the previous shutdown was not entirely sought after and a majority of the population of the area in dispute still had no communication with anyone outside the bounds of the said area. Amidst these shutdowns, a writ petition was filed before the Honourable Supreme Court of India challenging the constitutional validity of internet shutdowns such as the one that took place in Jammu and Kashmir. It was held in the case of Anuradha Bhasin vs. Union of India,[8] that such drastic measures of undertaking an internet shutdown lasting for more than 100 days must only be taken by the state in the situation of an unavoidable circumstance however, in the present petition, filed by the appellants, it was said by the court that there ought to have been an alternative method to protect the security of the state. The court entrusted on the test of proportionality and envisaged that the same must be taken forth in every situation and no misuse of power should take place while implementing an internet and telecommunications blackout.  It was also said that any power enlisted under Section 144 of the Code of Criminal Procedure,[9] if used casually results into severe illegality and it is the duty of the Magistrate to take necessary tests and conclude on the least intrusive alternative as available and ask for an implementation of the same. Finally, in February 2021, it was announced that 4G communications would be restored in Jammu and Kashmir and tourism and travel would be reintroduced in the state. At this instance, it becomes essential to understand what were the repercussions and impacts of such a shutdown socially and economically. Jammu and Kashmir, has seen the rise of digital apartheid wherein locals have felt discriminated and stripped off of their basic human rights after the Internet Blackout. They felt violated and unprotected as various extra judicial killings were taking place at a rapid pace and the death toll percentage had also risen by a significant margin. There have been instances where children were denied the right to basic education because of the pandemic shift of teaching methods and are put at a backstep because of having a gap of one year in the middle of their schooling. Economically, a data collected by The Hindu shows that there has been a loss of Rs 17K Crores as tallied by the Chamber of Commerce and Industry and there have been lakhs of jobs which were lost along with a rapid decline in the GDP percentage of tourism in the Kashmir Valley.[10] With all these backlogs that were faced by the Kashmir Valley residents, it is crucial to note that on account of “public safety”, the local government had taken a step which impacted the individuals very severely and in ways that cannot be transformed in the long run.

The United Nations experts had released a statement in relation to the internet shutdown imposed in Kashmir in August 2019, after the revocation of Article 370, which read as ‘The shutdown of the internet services and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality’.[11] On 10 January 2020, the Supreme Court of India also recognized the Internet as a fundamental right which should be protected under Article 19(1)(a) of the Constitution in Anuradha Bhasin v. Union Of India as stated above.[12] The case also highlighted that as per the Suspension Rules, the authorized officer should provide a thorough justification, including the unavoidable circumstance which led to the shutdown. Article 19(2) of the Constitution allows the State to impose ‘reasonable restrictions’ on the right to exercise freedom of speech and expression for the purposes of maintaining, inter alia, the State’s security and public order.[13] Section 5(2) of the Telegraph Act establishes the foundation for the procedure of internet shutdowns under the Suspension Rules as it allows the State to detain telegraphs on the grounds of ‘public emergency’ or ‘public safety’.[14] For restrictions such as shutdowns to be reasonable, the courts look into the subject-matter of the impugned legislation, the circumstances that led to these shutdowns as well as the economic and social conditions of the particular area, and it is upon the state to prove the reasonableness of the restriction.[15] Here comes in the principle of proportionality which is used by the courts to check whether the nature of a restriction is not excessive or arbitrary, which essentially means that the impugned restriction is not beyond what is required for achieving the aim of the legislation in the first place and that it impairs the fundamental right as little as possible.[16] In case of internet shutdowns, the State aims to maintain public order and security by restricting dissemination of information among the people when it anticipates any danger that can emerge from the use of internet services and social media platforms in forms of hate speech, messages instigating public disturbance, etc. However, it is to be noted here that the amendment to the Suspension Rules in the year 2020 allows for a temporary suspension of telecom services for not more than 15 days. This leads to the question of proportionality and reasonableness as the power given under the Suspension Rules results in disproportionate restriction on the freedom of speech and expression and massive adverse economic impact as explained above through the instance of Kashmir.[17] More and more state governments are willing to use internet shutdown as a routine administrative measure which is completely disproportionate to the harm intended to be remedied, as can be seen through the instance of Rajasthan where three shutdowns were imposed in three weeks to simply prevent cheating in public service recruitment examinations.[18] This instance clearly does not amount to the unavoidable situation that should lead to an internet shutdown and is not sufficient to restrict the freedom of expression through the Internet.

Additionally, Rule 2(6) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, finds it reasonable to provide five working days to review a suspension order by the Review Committee. However, as per an economic impact report on internet shutdowns between 2017 and 2018, the number of shutdowns ordered in 2017 more than doubled from the previous year, while the total combined hours of shutdown increased by only 20 percent.[19] So, considering the large number of cases where shutdowns had lasted for less than 5 days, the government has significantly reduced the number of suspension orders that fall within the ambit of the Review Committee.[20] Consequently, most of the suspension orders are implemented without undergoing the review process that checks their legality. Furthermore, the lack of furnishing legal justification and other related data required for implementing shutdowns by the relevant authorities adds to the failure of maintaining transparency while restricting the exercise of fundamental rights.[21] This legislative gap providing broad discretionary executive powers can also lead to abuse of power by the government for its own political interests by continuing to impose these shutdowns thereby depriving the citizens of their right to free speech and expression. Overall, the whole process of suspension of telecom services- “from direction to implementation to restoration of Internet – is beset with secrecy”.[22]

In view of all the arguments made above, it can be said that the Suspension Rules fail to accommodate the adverse impact on their very stakeholders whose lives are the most affected by the implementation of these Rules. In practicality, these rules have not been implemented in the spirit that was intended by the legislation and the State governments have been seen taking advantage of the loopholes present in them.[23] The increasing number of internet shutdowns in India provides evidence to the fact that they have become frequent state tools and without proper application, they are affecting multiple aspects of society. There lies a need for the government to find lesser invasive methods to resolve those same issues and prioritize the fundamental rights of the citizens by not relying on internet shutdowns. Strict conduction of the test of proportionality and necessity should be adhered to before imposing internet shutdowns in order to choose that measure which minimizes the economic and social costs.[24] India’s democratic government must uphold the values of transparency by providing legal rationale behind disrupting telecom services. Once this is done and justifications around shutdowns are strictly evaluated on the principles of justice and proportionality, the use of shutdowns may become less frequent and limit the power of the executive. Moreover, it is essential to note that internet shutdowns may be exercised by the state only in situations when there is a dire need to implement the same and even then, a proper clarification must be made to the citizens and some form of resolve should be provided to individuals who have a family based outside the area in dispute. In this manner, the scope of revolts and protests will become very minimal and the fundamental rights would stand unperturbed. Internet shutdowns may prove to be beneficial in very few situations however, the extent of their abuse is so massive that it becomes inherently difficult to look beyond this abuse.

Bibliography

Legislations and Cases

  • Indian Telegraph Act 1885.
  • Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules2017.
  •  Temporary Suspension of Telecom Services (Amendment) Rules 2020.
  •  The Constitution of India 1950, art 19.
  •  UNHRC Res 32/13 (1 July 2016).
  • Anuradha Bhasin v Union of India AIR 2020 SC 1308.
  • The Code of Criminal Procedure 1973, s 144.

Scholarly Articles

  • Gregorio G and N Stremlau, ‘Internet Shutdowns and the Limits of Law’ [2020] 14 International Journal of Communication <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3622928> accessed on 21 March 2021.
  • Kathuria R, ‘The anatomy of an internet blackout: measuring the economic impact of internet shutdowns in India’ (2018) Indian Council for Research on International Economic Relations.
  • Nayak N, ‘The legal disconnect: An analysis of India’s Internet Shutdown Laws’ (2018) Internet Freedom Foundation Paper 1/2018, <file:///C:/Users/user/Downloads/SSRN-id3254857.pdf> accessed on 20 March 2021.
  • Panicker R, ‘Internet Shutdown: Is It Violation of Fundamental Rights?’ (August 5, 2020) <https://ssrn.com/abstract=3667818 or http://dx.doi.org/10.2139/ssrn.3667818> accessed on 20 March 2021.

Books

  • MP Jain, Indian Constitutional Law (Lexis Nexis 2018).

Online News Forums

  • ‘Explained: How do internet shutdowns work?’ TRT World (India, 16 February 2021).
  • Gupta A, ‘The Worst Aspect of India’s Internet Shutdowns Is the Official Secrecy About It’ (The Wire, 5 July 2018) <https://thewire.in/tech/secrecy-abounds-the-creation-of-of-indias-internet-shutdown-law-why> accessed on 18 March 2021.
  • Mehrotra K, ‘Suspension of the Internet: What the Rules say, what the SC underlined’ The Indian Express (New Delhi, 17 January 2020).
  • Radhakrishnan V, S Sen and N Singaravelu, ‘Data | One year since Article 370 revocation: economy crippled, more locals take up militancy, and more’ The Hindu (5 August 2020).

[1]‘Explained: How do internet shutdowns work?’ TRT World (India, 16 February 2021).

[2]Indian Telegraph Act 1885.

[3]Karishma Mehrotra, ‘Suspension of the Internet: What the Rules say, what the SC underlined’ The Indian Express (New Delhi, 17 January 2020).

[4]Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017.

[5]Temporary Suspension of Telecom Services (Amendment) Rules 2020.

[6]The Constitution of India 1950, art 19.

[7]UNHRC Res 32/13 (1 July 2016).

[8]Anuradha Bhasin v Union of India AIR 2020 SC 1308.

[9]The Code of Criminal Procedure 1973, s 144.

[10]Vignesh Radhakrishnan, Sumant Sen & Naresh Singaravelu, ‘Data | One year since Article 370 revocation: economy crippled, more locals take up militancy, and more’ The Hindu (5 August 2020).

[11]Raveena Panicker, ‘Internet Shutdown: Is It Violation of Fundamental Rights?’ (August 5, 2020)<https://ssrn.com/abstract=3667818 or http://dx.doi.org/10.2139/ssrn.3667818> accessed on 20 March 2021.

[12]Anuradha Bhasin v Union of India AIR 2020 SC 1308.

[13]The Constitution of India 1950, art 19.

[14]Indian Telegraph Act 1885.

[15]MP Jain, Indian Constitutional Law (Lexis Nexis 2018).

[16]ibid.

[17]Apar Gupta, ‘The Worst Aspect of India’s Internet Shutdowns Is the Official Secrecy About It’ (The Wire, 5 July 2018) <https://thewire.in/tech/secrecy-abounds-the-creation-of-of-indias-internet-shutdown-law-why> accessed on 18 March 2021.

[18]Nakul Nayak, ‘The legal disconnect: An analysis of India’s Internet Shutdown Laws’ (2018) Internet Freedom Foundation Paper 1/2018,<file:///C:/Users/user/Downloads/SSRN-id3254857.pdf> accessed on 20 March 2021.

[19]Rajat Kathuria, ‘The anatomy of an internet blackout: measuring the economic impact of internet shutdowns in India’ (2018) Indian Council for Research on International Economic Relations.

[20]Nakul Nayak, ‘The legal disconnect: An analysis of India’s Internet Shutdown Laws’ (2018) Internet Freedom Foundation Paper 1/2018 <file:///C:/Users/user/Downloads/SSRN-id3254857.pdf> accessed on 20 March 2021.

[21]Giovanni De Gregorio and Nicole Stremlau, ‘Internet Shutdowns and the Limits of Law’ [2020] 14 International Journal of Communication <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3622928> accessed on 21 March 2021.

[22]Nakul Nayak, ‘The legal disconnect: An analysis of India’s Internet Shutdown Laws’ (2018) Internet Freedom Foundation Paper 1/2018,<file:///C:/Users/user/Downloads/SSRN-id3254857.pdf> accessed on 20 March 2021.

[23]ibid.

[24]ibid.

Author 1- Pratha Khanna, O.P. Jindal Global University, 2nd Year Law Student (BBALLB Hons.)
Author 2- Sanya Rai. O.P. Jindal Global University, 2nd Year Law Student (BBALLB Hons.)

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