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Internet Shutdowns in India – Legality, Constitutionality and Instances

  1. Introduction

India experienced 121 internet shutdowns in 2019, the highest number globally, ahead of Venezuela, Yemen, Iraq, Algeria and Ethiopia. In terms of duration, Kashmir witnessed the second longest shutdown of 2019, which is the greatest irony since out of all the countries that are mentioned, only India prides itself on being the ‘largest democracy’ in the world. The total cost of shutdowns in India in 2019 was a staggering $1.3 billion.

Another irony is how, the Digital India programme launched on 1st July 2015 by the Ministry of Electronics and Information Technology of the Union government, aims to enhance the delivery of governance with the assistance of the internet. The underlying assumption of this program is an unhindered access to the internet by citizens at all levels, given that a disruption of internet services would essentially be in interference with governance and the lives of citizens. Despite this, India has witnessed a rising number of internet shutdowns each year.

  1. Legal provisions

Section 144 of The Code of Criminal Procedure, 1973 grants special powers to the District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate to issue an order in cases of ‘nuisance’ or ‘apprehended danger’. Such an order can direct any person to abstain from certain acts, such as assembling in groups of four or more people, carrying firearms to public spaces and suspension of telecom services, to name a few.

Another legacy of the colonial era is Section 5 of the Indian Telegraph Act, 1885 which authorizes the government to take possession of or prevent the transmission of any telegraphic message in the case of a public emergency or in the interest of public safety. In 2017, the government brought about new rules in Section 7 of the Act. The rules allow for the temporary suspension of telecom services in the case of a public emergency or in the interest of public safety. The directions under these rules cannot be issued by an officer below the rank of joint secretary to the Government of India. Furthermore, the order of suspension of the internet      has to be forwarded to a review committee within a day.

There are obvious loopholes in these Acts. In Section 144, there is no definition of what might be considered a nuisance or apprehended danger by the Magistrate. Similarly, Section 7 of the Indian Telegraph Act does not give an explanation of what may be considered a public emergency by the authorities. These open-ended definitions allow for a misuse of these laws at the hands of the concerned authorities and make it impossible for them to be held accountable by the public. The committee that was formed to review the orders holds no powers to reverse the order if they find the shutdown to be unreasonable.

  1. Constitutional provisions

Governments all over the world have been resorting to shutting down the internet in times of public unrest despite the large economical costs, claiming that it is necessary for public safety or to curb the spread of misinformation. This is also because the internet is a vital commodity for protesters all over the world, who use it to organize online awareness and offline rallies to defend their rights and express their grievances with the government. The governments of countries like Bangladesh, Egypt, Syria, Pakistan etc. shut down the internet in response to such uprisings. What is disturbing is that while we consider curbs on free speech synonymous with authoritarian regimes, India – the world’s largest democracy – is the global leader in shutdowns.

Article 19(I) of the Indian Constitution protects the right of citizens to access and distribute information. Furthermore, it also protects the right to exercise freedom of speech and expression. In Shreya Singhal v. Union of India, (2013) 12 SCC 73, the Supreme Court recognized that access to the internet is essential to further the Right to Freedom of Speech and Expression. Indefinite Internet shutdowns are thus in direct violation of Article 19 as they disrupt the spread of free and fair information.

Article 21 of the Indian Constitution protects the right to life and personal liberty except according to a procedure established by law. The definition of the word ‘life’ under article 21 has a wide meaning which includes the right to live with human dignity, right to livelihood, right to health, etc. A shutdown of internet services can prove a threat to life when it disrupts the flow of important information in areas of public unrest. In a world that relies completely on the internet, shutdowns are also in direct violation of the right to live with human dignity, as it restricts the flow of communication with family in times of need or any emergencies that may occur. It can also restrict access to speedy healthcare      lead to a loss of livelihood and a reduction in income.

Due to the COVID-19 pandemic, the internet has assumed a new role. Students around the world have witnessed their dependency on the internet to access educational resources in the midst of the global pandemic. A shutdown or slowdown in internet access would thus be in contravention of the Right to Education- which is a fundamental right under Article 21 A- as it would deny access to online classes along with other educational resources.

In January 2020, the Supreme Court of India declared access to internet a fundamental right for every citizen residing in India. No government of the country has the power to deny the citizens of their fundamental rights except under certain conditions that are explicitly mentioned in the Constitution.

  1. Two instances of internet shutdown in India in 2019

On 5 August 2019, the law that granted special autonomous status to the state of Jammu and Kashmir was repealed. The abrogation of Article 370 was expected to create waves of unrest in the Kashmir Valley and so, in anticipation of this unrest, the internet and cellular connectivity was shut down indefinitely in the entire valley. This shutdown went on to be the longest internet shutdown ever in any democracy. Experts from the United Nations believed that the shutdown was done without justification and as “a form of collective punishment of the people of Jammu and Kashmir”. Authorities justified the shutdown by stating security reasons and claiming that it was done for the maintenance of law and order. In a democracy that runs on collective action, it is imperative for the public to have an outlet to express their opinions on the workings of their leaders. The preventive internet shutdown of Kashmir took away this power from the citizens of the valley and left them in the dark without any feedback mechanism.

There was also a huge economic loss attached to the shutdown – it was calculated by the Kashmir Chamber of Commerce that, 6 months without internet connectivity led to a $2 billion economic loss and almost half a million jobs. Even as of September 2020, after the Supreme Court of India declared internet a fundamental right and ordered the government to restore connectivity in the states of Jammu and Kashmir, 4G internet access has only been restored in two districts – Ganderbal in Kashmir and Udhampur in Jammu. The rest of the union territory, which is home to more than 10 million people, continues to get only 2G internet speed, which is 20 times slower than the 4G speed which is the status quo in the rest of the country. Apart from economic costs, the emotional, social and mental costs of these shutdowns aren’t taken into account.

The second instance of internet shutdown was in December 2019 amidst the protests against the Citizenship Amendment Act 2019, in various North Eastern states such as Arunachal Pradesh, Tripura, Assam and Meghalaya. This shutdown was implemented in an attempt to control the public outrage. This move to shutdown internet in an area that is home to more than 32 million Indian citizens, was seen as a way for the government to prevent people from communicating on the web and accessing information. Officials claimed that social media platforms are being used to spread misinformation and rumors that may lead to violence in the states. Internet blackouts lasted for at least 48 hours in these North Eastern states, while the shutdown in Assam lasted 9 days. However, in Indibility Creative Pvt Ltd. V. Govt. of West Bengal, the Supreme Court mandated that “free speech cannot be gagged under the fear of mob violence”.

The government claims to be facing a dilemma wherein it is unable to balance the trade-off between internet connectivity and maintaining public order. However, a recent study conducted on internet shutdowns to curb public unrest in India, by a US based organization ‘Ranking Digital Rights’, states that while Indian authorities claim that these blackouts are useful in pacifying citizens and preventing unrest, no empirical data in support of these claims has ever been presented.

  1. Conclusion

India has been labeled the internet shutdown capital of the world and has contributed to the normalization of internet blackouts in the face of public unrest. The government officials in India are increasingly using internet blackouts as a way of silencing dissent and controlling public gatherings, based on a 135-year-old law that echoes the practices used during the era of the British Raj. Jammu and Kashmir in particular has suffered the brunt of the shutdown.

It has been made fairly obvious through this article, that the Supreme Court directive of January 2020, has failed to motivate the government to restore internet connectivity in Jammu and Kashmir or to stop using internet suspension practices as a method of controlling public unrest. As countries all over the world witness pro-democracy protests, India, the largest democracy in the world, thus must set an example by repealing this archaic law and bringing about accountability of the officials who choose to misuse this law to silence the grievances of the citizens.

Tanmaya Arora is a Masters of Public Policy student at the Jindal School of Government and Public Policy.

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