This article is written by Shriya Raje, a student of B.A. L.L.B(Hons.) at the University of Allahabad. In this article, the author explains the problem of Internet shutdown in the world’s largest democracy. This article brings together the emergence of a new right that stemmed from digitalization and the challenges that its enforcement encompasses along with the repercussions of its denial in a democracy. 

Introduction

It took years to sculpt the vision of the digital transformation of the world into a reality and now, from administration to business, almost everything is run on a digital platform. 

Laws governing the right to internet and its shutdown in India

The onset of digital campaigns made the right to internet as an indispensable new entry in the plethora of rights granted to people across the world. With the digitalization of public and private sectors, the denial of access to internet to a set of persons would only create digital inequality amidst the persisting inequalities in the world. In 2016, the UN human rights council declared the right to internet access to be a human right. Many countries, including India, have recognized right to the internet in some way. 

Spirit of the constitution is the spirit of the age. BR Ambedkar made this remark in the context of the nature of the Indian constitution which is flexible to the will of people. Abiding by this, the supreme court of India in Anuradha Bhasin v Union of India has declared the right to internet as a part of fundamental right under Article 19(1)(a) and 19(1)(g) of the constitution. Previously in 2019, Kerala high court in Faheema Shirin R.K v State of Kerala has declared right to internet as an inherent part of right to education under Article 21A and right to privacy under Article 21. 

Free speech, right to information, and freedom of the press are important facets of freedom of speech and expression under Article 19(1)(a). These facets are conjoined with one’s right to uninterrupted access to the internet. The Internet has become the major source of gaining and sharing information and it facilitates the way media plays a role in a democracy. With the globalization of economy and advancement in technology, many businesses are run via the internet. Trade and commerce is also now internet-based called e-commerce. There are other jobs too that require people to be online like YouTubing and blogging. This is why access to the internet is cardinal freedom for the exercise of a right under Article 19(1)(g). 

However, these rights are not absolute and subject to public peace, morality, security, and other exceptions under Article 19(2). Also, the magistrate is allowed to suppress freedom of speech and expression under Section 144 of CrPC in case of breach of public peace. The court has denounced repetitive exercise of this power by the magistrate and held that such orders will now be scrutinized by high courts and the doctrine of proportionality must be applied before upholding such orders. In Modern Dental College & Research Centre v. State of M.P., four essentials of proportionality were defined as follows-

1. There must be a legitimate goal.
2. There must be a suitable means of furthering this goal                  
3.  There must not be an equally effective alternative                       
4. The measure must not have a disproportionate impact on the rightholder.

When the aforementioned essentials are met with, the restriction can be imposed. However, Section 144 of CrPC is now subject to the temporary suspension of telecom services rules, 2017.

Since the freedom of internet access is not unrestricted, there are some laws that govern internet shutdown in India. Earlier, the Indian telegraph act 1985, which gave power to British officials to control Indian telephone lines, granted the power of internet censorship to the government of India. Section 69A of the Information Technology (Amendment) Act of 2008 allows the government to block specific websites and pages in the interests of the sovereignty and integrity of India and the security of the State. Besides this, section 144 of crpc provided for the power of the magistrate to issue directions to block the internet in certain areas for maintaining public order. This section has been used and abused time and again, especially in the state of Jammu and Kashmir. This is because this section provides slack and broader powers to the government to snap the internet.

Under the Indian Telegraph Act 1985, the government has notified Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules which currently governs the internet shutdowns in India. These rules provide the procedure for the lockdown or the suspension of internet services. Directions given under these rules supersede orders made under section 144 crpc. The grounds given for shutdown are “public emergency” and “public safety”. Both these terms are however not defined in the parent Act or the rules. The committee made for reviewing such orders comprises executives and there is no impartial body for the purpose. There is no provision for the procedure for lifting of the shutdown under these rules.

Internet shutdowns in democracies across the world: A common trend

One of the many anti-democratic steps taken by a’ government by the people’ is the internet lockdown of its people. In the last decade, the flawed democracies in the world like Sri Lanka, Philippines, and India among many others have registered internet shutdowns made with the intent of forwarding political agenda of the state without their people taking a toll on it. In the Philippines, every large event in the state is accompanied by the snapping of internet in the name of national security. This has been happening since 2015 and is now normal to have happened. In April 2019, to tackle the rebel of climate change activists in the U.K., the British transport police shut down the wifi on London’s tube network. Similarly, in Sri Lanka, after a few blasts took place in Colombo, internet restrictions were put in place to quell the flow of misleading information. 

Internet snapping takes place usually in a despotic state wherein there is lesser liberty and more privileges available to the citizens. Such a situation of internet blackout can be frequently seen in states like Iran, Iraq, China, Myanmar, Ethiopia, Turkey, Congo, Zimbabwe, Kazakhstan and Syria.  The aspect of civil liberty is not in question for unlike a true blue democracy, there is no concept of voicing opinions against the government in an authoritarian regime. The controversial events are hidden from people and the information that poses the threat of rebel is also stopped from circulating. 

Indian democracy: a world leader in internet shutdowns

India, that is the largest democracy in the world, also happens to be leading the world in internet shutdowns. Even the slightest chance of resistance and there is an internet blackout at the drop of a hat. The internet shutdown tracker, run by a society called SFLC, reveals that 385 shutdowns have been recorded in India from January 2012 to March 15 2020. 237 of 385 shutdowns were preventive whereas 148 were reactive. The data reveals the easy use of governmental powers before any need for it. In mere anticipation of law and order situation the government of India has bereaved the citizens of their fundamental rights which are meant to be protected even during an emergency. India tops the list of internet shutdowns in the world and is followed by autocratic countries like china and Myanmar. The longest internet shutdown recorded in India was after the abrogation of article 370 of the Indian Constitution in 2019. A preventive shutdown was imposed in the state of Jammu and Kashmir which is yet to be lifted entirely. 

Many of the shutdowns in India were meaningless and unjustifiable. Not just to curb violence, the internet had been shut down in India also to stop cheating in recruitment examinations in Rajasthan. There was no dire need but just for smooth conduct of examination the internet was snapped in Rajasthan halting routines of many. Even the smallest protests are countered with internet shutdown in the apprehension of an upsurge. On June 6, 2017, after a minor protest by farmers the government in Madhya Pradesh blocked internet services in 6 districts. 

There is a perpetual occurrence of internet blockade ahead of elections in India. In 2019, there were shutdowns reported across the country in Rajasthan, West Bengal and Kashmir in a month when voting began. Similarly, in 2017, both mobile and broadband services were suspended in three districts of Jammu and Kashmir prior to by-elections in April. Instances like these manifest disrespect for democratic values in India.

Impact of internet shutdown and what next

The question that arises is whether the internet shutdown a resort to protect tranquility or is that just a myth. The shutdowns in Kashmir after watering down of article 370 were unexplained. The shutdowns were aimed to prevent violence that was apprehended given the history of the state. However, since the government scrapped off article 370 in the name of the welfare of people of Jammu and Kashmir, the lockdown becomes a contentious step for the people to be benefitted did not have a say in the matter. Education was completely flustered in Jammu and Kashmir due to the imposition of section 144 of crpc for a prolonged period. While the situation was already abysmal, the internet heckling and unavailability of online education portals made the situation much more so.

There is not much evidence to show the fruition of internet shutdowns in controlling law and order and sustaining peace. Internet can be used as a tool of containment during a period of unrest. For instance, in September 2016, when riots broke out in Bengaluru city, a social media team of the police used Twitter to send out regular announcements on the law and order situation, counter rumors, and answer queries from concerned citizens. In the Covid-19 pandemic of 2020, internet has become the boat that drifts one from crisis to normal. The cashless transactions, online delivery of necessities, education, administrative activities, internships, jobs, as well as e-filing of cases in courts have saved many during this time. Awareness is spread via internet and heath institutions also need internet for smooth services. Living without internet becomes unimaginable in a pandemic.

There is a huge socio-economic impact of internet shutdowns. The citizenship (amendment) act was enforced on 10 January, 2020 followed by a widespread protest in most northern India. 24 districts of Uttar Pradesh had seen internet lockdown. There is a very large consumer base for online service providers in UP and NCR. From online food and grocery suppliers to cab services every online service was halted during this internet lockdown period. The business of swiggy, zomato, uber eats as well as of their partner restaurants was affected. Grofers, Ola, and other lesser-known online services also saw a dip. Besides the loss of business, there must be an impact on the lives of people availing of these services. 

In a democracy, internet is used not just to voice opinions against the government but also facilitates fairer elections by the medium of electronic voting. Active participation of citizens, a key feature of democracy, is possible today. Most of the internet shutdowns are deliberated to repress public voice under the veil of public peace. The bottom line is that the regulation of internet shutdowns must be done comprehensively by the courts or any other body. There must be a close nexus between the lockdown and the object sought. The period of lockdown must be specified and should not be indefinite. Internet shutdown should be the last resort and all other options to retain peace must be exhausted first. 

References

1. Vikas Bhadauri, Internet Shutdown: validity and legal procedures of such orders, INDIA LEGAL (Jan. 3, 2020, 4:30 PM), https://www.indialegallive.com/top-news-of-the-day/news/internet-shutdown-validity-legal-procedure-orders-80614
2. TNN, Cabs to food, e-biz hit by internet shutdown
3. TIMES OF INDIA, (Dec. 22, 2019, 9:09 PM), https://m.timesofindia.com/india/cabs-to-food-e-biz-hit-by-internet shutdown/amp_articleshow/72920805.cms
4. TOI, Internet as scapegoat: Banning internet across Rajasthan to prevent cheating in exams is as draconian as it gets, THE TIMES OF INDIA BLOGS, (Aug. 6, 2018, 11:58 PM), https://timesofindia.indiatimes.com/blogs/toi-editorials/internet-as-scapegoat-banning-internet-across-rajasthan-to-prevent-cheating-in-exams-is-as-draconian-as-it-gets/
5. HRW, India: 20 Internet Shutdowns in 2017, HUMAN RIGHTS WATCH, (Jun. 15, 2017 10:15 PM) https://www.hrw.org/news/2017/06/15/india-20-internet-shutdowns-2017
6. James Griffiths, India is cutting people off from the internet in the middle of its election, CNN BUSINESS, (May. 8, 2018 12:32 PM), https://edition.cnn.com/2019/05/08/tech/india-election-internet-shutdowns/index.html
   

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