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Understanding the legality of internet shutdowns in a democracy

Posted on by Asian Law College

Understanding the legality of internet shutdowns in a democracy

Introduction

The world of today is verily a world of cyber dependency. From booking tickets and cabs online, finding routes on google maps, video calling our dear ones to express an opinion on twitter, sending and uploading documents – everything is dependent on internet access. Still, “internet shutdowns” are resorted to by the governments all over the world in the name of maintaining law and order. What is more dreadful is that the world’s largest democracy is first on the list with approximately 134 instances of internet shutdown in 2018 and 103 such instances in 2019 making India the country to have reported the highest number of internet shutdowns globally.

Internet Shutdowns: Meaning & Instances

Basically, internet shutdown means disruption of access to the internet by imposing of restrictions by government of a country. Sometimes, it is also referred to as “digital curfew” or “internet kill switch”. It may be limited to shutting down of internet services on mobile or blocking of SMS service. It may be imposed across the whole nation or a state or restricted to some specific area.

  • In India, cases of internet shutdown are rampant as it has become the government’s favourite tool to curb any kind of real or a mere apprehended danger. The most recent instance is the internet shutdown imposed in parts of Delhi on December 19, 2019, due to the rise in the number of Anti-CAA protests.
  • In 2017, internet of mainly mobile services was suspended in Punjab & Haryana to prevent the spreading of rumours during the trial of Dera Sacha Sauda chief Gurmeet Ram Rahim Singh.
  • Of late, the internet was shut down in Kashmir from August 4, 2019, due to apprehensions of the threat to the security of people in the wake of the government’s decision to scrap Article 370 from the Constitution. It is recorded to be the world’s longest internet shutdown in a democracy.
  • In 2018, internet shutdown was imposed in Rajasthan to restrict cheating in state services examination.

Legislative machinery

  1. Section 144 of the Code of Criminal Procedure, 1973: Commonly, Section 144 of the Criminal Procedure Code has been extensively used by the government to impose internet blackouts in various areas. It gives power to a District Magistrate, Sub-divisional Magistrate or an Executive Magistrate to issue directions to maintain public order in urgent cases of nuisance or apprehended danger.
  2. Section 69A of The Information Technology Act, 2000: Section 69A of Information Technology (IT) Act confers power on the Central Government or any officer authorized by it to issue directions for blocking of public access of any information through any computer resource in the interest of sovereignty and integrity of India, defense of India, the security of state, etc. The Gujarat High Court in the case of Gaurav Sureshbhai Vyas v. the State of Gujarat upheld the competency of government to resort to Section 144 Cr.P.C while rejecting the contention that the government was incompetent to impose internet shutdown under Section 144 because the power to block information on a computer is related to Section 69A of IT Act.
  3. Suspension Rules under Telegraph Act 1885: In 2017, Government promulgated Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules under the Indian Telegraph Act, 1885. The rules lay out certain safeguards to be adhered to while passing of an order of internet shutdown, some of which are as follows:
  • Directions to suspend telecom services shall be issued by order of Secretary to Government of India in Home Ministry or by Secretary to State government in charge of Home Department in case of state and, in unavoidable circumstances by an officer who has been duly authorized by Union Home Secretary or State Home Secretary. Such order shall be subject to confirmation from competent authority within 24 hours of its issue and shall cease to exist in case of failure of receipt of confirmation.
  • Any such order must be a reasoned one and its copy is to be forwarded to Review Committee within one working day which has to meet within 5 days to record its findings as to whether it is in consonance with Section 5(2) of Telegraph Act which provides for “Power of government to take possession of licensed telegraphs and to order interception of messages” on occurrence of any ‘public emergency’ or in the interest of ‘public safety’. In PUCL v. Union of India, Supreme Court of India explained the phrase “public emergency” as prevailing of sudden condition or state of affairs affecting the people at large calling for immediate action while “public safety” means state or condition of freedom from dangers or risk for people at large.

Are Internet shutdowns violation of fundamental rights?

Freedom of speech and expression: For the proper functioning of a democracy, it is important that the people are aware of what the government is doing. Accountability is the very foundation of democracy. The concept of open government is said to be the direct emanation from right to know or right to acquire information and to disseminate it, which is implicit in right to free speech and expression.

Article 19 of the Universal Declaration of Human Rights provides for freedom of speech and expression.

Article 19 of the Indian Constitution itself provides for six basic freedoms. The 2016 Resolution of UNHRC (United Nations Human Rights Commission) provided that the same human rights people have offline must be also protected online.

Nevertheless, it is undisputed that no right is absolute. Reasonable restrictions can be imposed on the exercise of these rights in the interest of the state, security reasons etc.

Article 34 of the Constitution of International Telecommunication Union (ITU) also sanctions stoppage of telecommunication by giving the right to member countries to stop/block/cut-off telecommunication services on certain grounds.

Article 19(2) of Constitution of Indian also provides for the imposition of reasonable restrictions on the grounds including interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order etc.

  • Freedom of press: Freedom of Press is inherent in Article 19(1)(a) of Constitution. When digital curfews are imposed, it results in a violation of freedom of the press to a substantial extent. The action of government imposing internet shutdown in Kashmir in August 2019 has had a debilitating and crippling effect on reporting, newsgathering, publication, circulation and information dissemination and have also resulted in freezing of web portals and news websites.
  • Freedom to practise any profession, or to carry on any occupation, trade or business: Arbitrary shutting down of the internet threatens the livelihood of people who are engaged in e-commerce or online delivery services and also causes obstruction in working of e-banking services, hotels, etc.

There is no question of whether the government can suspend or censor internet services but to what extent the government can resort to this extraordinary measure so as to maintain the balance between liberty and security.

The state must adhere to the statutory principles, principles of natural justice and the principles evolved by means of judicial interpretation to ensure that orders of internet shutdown are not imposed in a senseless manner. The order to shut down internet should be fair, reasonable and must stand the proportionality test which can be best explained by Lord Diplock’s saying ‘You must not use a steam-hammer to crack a nut if a nutcracker would do. In Modern Dental College case, the Supreme Court observed that doctrine of proportionality is inherent in our Constitution. Simply put, the proportionality test implies that the restrictions imposed on a right must not be excessive and should have a direct nexus with the object sought to be achieved by the imposition of such restriction.

Status of Right to Access Internet in India

Without doubt, the Internet is a necessary tool for communication. Finland is the first country which declared access to the internet as a legal right. In India, however, the right to access the internet is not a fundamental right yet.

The Kerala High Court in Faheema Shirin.RK v. State of Kerala and Ors. held that the right to access the internet is a part of our fundamental rights which cannot be taken away arbitrarily.

The Supreme Court has also in Shreya Singhal v. Union of India while striking down Section 66A of the Information Technology Act,2000 recognized that citizens have a right to exercise free speech and expression online.

The latest pronouncement on this aspect is Anuradha Bhasin v. Union of India dealing with the internet shut down imposed in Jammu and Kashmir in from August 4, 2019, onwards, wherein the Supreme Court declared that right to exercise freedom of speech and expression and freedom to practice any profession or to carry on any occupation, trade or business over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) and restrictions on it should be in consonance with Article19(2) and Article19(6) respectively, inclusive of test of proportionality.

Highlights of Anuradha Bhasin’s judgement:

  • Court emphasized on the need to observe certain safeguards while exercising power under Section 144 of CRPC,1973 including prior enquiry before issuing the order, communication of order, duration etc. Section 144 is both remedial and preventive and is exercisable in times of present danger and when there is the apprehension of danger. But repetitive orders under section 144 would be an abuse of power.
  • Court observed that no law should be passed in a covert manner. The state has to publish orders restricting internet access.
  • Order suspending internet services indefinitely is proscribed.
  • Order of suspension of the internet is subject to Judicial review. As existing rules under Telegraph act don’t provide for time limitation for periodic review, the Court directed that the review committee has to conduct a periodic review of such suspension order within 7 working days of the previous review.

So, the Supreme court by its prominent judgement has endeavoured to fulfil the shortcomings of the procedural mechanism for the suspension of telecommunication services by evolving sufficient safeguards against the secrecy of such orders and has stressed on the need for a sunset clause.

Conclusion

Governments have time and again adopted the harsh tool of internet shutdown to deal with various issues including cross-border terrorism, security of state, etc. In some cases, the use of such extraordinary measure is justified – for instance, the internet shutdown in Kashmir in 2016 due to the violent protest after the death of militant Burhan Wani. Yet, in other cases like the shutting down of the internet to prevent cheating or for the purpose of introducing new laws, is nothing more than an instance of digital authoritarianism. Such arbitrary shutdowns are an antithesis of democracy.

In a democracy, every individual has an indisputable right to discuss the everyday events including the burning topics of the day. Passing of a blanket order restricting access of internet services to a free citizen likens him to that of a criminal. Apart from this, the frequent suspension of internet services in India goes against the Digital India initiative of Prime Minister Narendra Modi. Again, one cannot ignore the fact that internet shutdowns bring huge economic losses with them. To quote a recent study conducted by ICRIER (Indian Council for Research on International Economic Relations) on shutdowns in India, it stated that from 2012 to 2017, 16315 shutdown hours cost country’s economy approximately $ 3.04 billion. These internet shutdowns disconnect the area where shut down is imposed from the rest of the world which may stimulate violent uprisings rather than nipping them in the bud.

There is no doubt that law changes with changes in society. However, law must develop further with technological developments rather than curbing citizen’s access to technology. Hence, internet shutdowns must be resorted to as the last alternative and that too in a cautious manner considering the need to strike a balance between Security of State and individual on one hand and Liberty and rights of individual on the other hand.