The Legality of Internet Shutdowns in a Democracy

Introduction:

Internet shutdown can be defined as an intentional practice of disrupting the internet services and internet-based communications by rendering it inaccessible or unavailable with the primary objective of disrupting the flow of information. In today’s era, the internet, apart for being a medium ensuring the right to free speech on online platforms also acting as a catalyst in the process of receiving and imparting knowledge, opinions as well as information around the planet. Therefore, an abrupt and hasty internet shutdown by the government without any justified or reasonable explanation raises several questions as to the credibility of the government and the legality of such digital shutdowns in a democratic structure.

Such digital shutdown can be imposed by the government in several circumstances, namely –

1. To avoid violence in a conflict-affected region
2. Preventive measure against the act of sedition
3. To maintain peace and public order during the times of internal aggression
4. To prevent the circulation of fake news and hate speeches
5. To keep public safety and tranquillity

Significance of Internet as a mode of Speech in a Democracy

Internet as a mode of speech and expressions plays a crucial role in a democratic society as it allows an individual to reach out to the world and communicate his/her thoughts and opinions. It is significant to understand that the concept of democracy is not limited to casting of vote for the leader of your own will, it is much more comprehensive than that and also includes the liberty of citizens –

1. to communicate the knowledge and information of various sorts with each other,
2. to educate and aware people around the globe regarding various current issues/affairs, and
3. to keep surveillance over the activities of the existing government,
4. to monitor the social, political and economical environment all over the world

Therefore, in order to preserve the true essence of democracy, it is essential for the government to minimize the excessive and arbitrary internet curfews to curtail the free speech of citizens.

Internet Shutdown – a Violation of Human Rights [International aspect of internet shutdown]

• Internet shutdown -violative of Article 19 of universal human rights declaration

UNHRC (United Nations Human Rights Council)

Article 19 – freedom of opinion and expression

Article 19 of the human rights declaration,1948 provides for freedom to hold an opinion and to express and share it freely with the rest of the world without any intervention. Thus, article 19 protects and ensures the right of people to seek, receive and impart information, opinions and ideas through any form of media regardless of frontiers.

Article 19 believes that the internet is a public domain and any limitation on the liberty of holding an opinion and expression online must be provided for by law, pursuing a legitimate and legal objective and should be both necessary and proportionate.

In the year 2016, UNHRC, the highest body known for the protection and promotion of human rights passed a landmark resolution condemning internet shutdowns by the concerned government as a human rights violation and reaffirmed that – “the same human rights that people have offline must be protected online as well”.

• Internet shutdown – violative of Article 19 of international covenant in civil and Political rights

ICCPR (International Covenant on Civil and Political Rights)

Article 19 – freedom to hold opinion without interference

ICCPR is a multilateral treaty adopted during UN General Assembly resolution on December 16, 1966, which protects and preserves basic human rights.

Article 19 of Covenant on Civil and Political Rights also assures the similar right to the citizens around the globe, to have freedom of speech and expression through ideas, opinions and information which also includes receiving and imparting information either orally, in writing, in printed form, in the form of art, or through any form of media of their own choice, without any interference or barrier.

The limitation on this right shall be subjected to –

1. Protection of right to reputation
2. Protection of national security, public order and public health or morals

Legal Architecture of Internet Shutdown in India

1. Code of criminal procedure (CRPC), 1973

Section 144 – Power to issue order in urgent cases of nuisance of apprehended danger

One of the initial provisions regarding the imposition of internet shutdown in India can be traced under section 144 of the code of criminal procedure, 1973.

Section 144 of Cr.p.c, empowers the district magistrate, sub-divisional magistrate and executive magistrate to issue orders in cases of –

1. Emergency
2. Nuisances
3. Disturbance of the public tranquillity
4. Apprehended danger
5. Ensuring Public health and safety

The majority of cases, the nature of the orders issued under section 144 are anticipatory. Although the supreme court of India[1] has declared that the use of section 144 for internet shutdown can only be used as a last resort but still the government has incessantly used the backing of Section 144 as the primary measure.

2. Information Technology (IT) Act, 2000

Section 69A – Power to issue directions for blocking for public access of any information through any computer resource

Section 69A of the information technology act, 2000, empowers the central government (or its authorized officer) to block the access[2] for the general public, to any information[3] – generated, received, transmitted, stored or hosted in any computer resource[4].

Such orders for restricting the entry of the general public to “any information” online can be issued only when the government is satisfied that such action is expedient or necessary in the interest of-

1. The sovereignty and integrity of the country (India)
2. Security of the state
3. Defence of India
4. Public order
5. Friendly relations with the foreign states, and
6. Prevention of incitement to the commission of any cognizable offence related to above

The internet shutdown under section 66A cannot be imposed by the government arbitrarily, it must include the mechanism which duly follows the principles of natural justice under the Information Technology (Procedure for Safeguards for Blocking Access of Information by Public) Rules,2009.

Punishment in case of default – In case, if the intermediaries who are directed by the government to block such access of public fails to comply with the directions issued, shall be subjected to punishment for the term which may extend to 7 years and shall also be liable to fine.

Note – IT Act, 2000 is a special act/law which deals with almost every aspect of cyber (online) offences and other internet- related regulations therefore in case of any conflict between the code of criminal procedure and information technology act, the IT Act shall prevail. The same has been mentioned under section 81 of the IT Act, 2000 which provides an overriding effect to the provisions of IT Act.

3. The Indian Telegraph Act, 1885

Section 5 – Power for Government to take possession of licensed telegraphs and to order interception of messages

Section 5 of the Indian Telegraph Act,1885, empowers the central as well as state government (or any authorized officer on their behalf) on the occurrence of “public emergency” or “in the interest of public safety” to take temporary possession of any telegraph[5] – established, maintained or worked by any person having a license under this act.

The concerned government can issue such orders, if it is satisfied that immediate action is expedient or necessary on the grounds of – the sovereignty of the country, ensuring the security of the state, friendly relations with other countries(foreign states), maintaining public order or for the purpose of prevention of incitement to the commission of the above offence.

Therefore, on the basis of above-mentioned grounds, the government may issue the order (along with reasons to be mention in writing) that telegraph shall not be transmitted or be intercepted or detained by the concerned government for a temporary period (as long as the public emergency exists).

 

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

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 was enacted to widen the scope and interpretation of section 5(2) of the Indian Telegram Act, 1885. The rule provides proper procedures and safeguards against internet shutdowns under telecom act. The only drawback with the parent act and its rule 2017 is that both failed to define the meaning of “public emergency and public safety” which still provides sufficient power in the hands of government to misuse it. Also, after its enactment, the nation has faced numerous internet shutdowns which questions its effectiveness as well.  

Landmark incidences of Internet Blackout – Indian democracy in digital darkness

1. Internet curfews in Rajasthan to prevent cheating in examinations

• In the month of July and August 2018, the divisional commissioners in Rajasthan under Temporary Suspension of Telecom Services Rules, 2017, ordered the suspension of mobile internet services in order to prevent the use of unfair means of cheating in public service examination held for the recruitment of police constables.

• A PIL challenging the validity of the orders that were promulgated to impose mobile-internet shutdown with an intention to prevent cheating was filed in Rajasthan high court.

• The petitioners argued that the internet shutdown imposed by the government does not fall within the ambit of “public emergency” or “public safety” thereby fall outside the scope of Temporary Suspension of Telecom Services Rules, 2017.

• Further, the petitioners also argued that the shutdown was violative of Article 19(1) of the constitution of India, the arguments were duly recognized by the high court[6].

2. Longest Internet blackout in a democracy – Jammu and Kashmir

• August 5, 2019, from the date on which the special status of Jammu and Kashmir has been withdrawn, a preventive internet blockade was imposed in the entire state of J&K. all the medium of communications were blocked including landline telephone services and mobile internet.

• Finally, on 25^th-26^th January the internet curfew was lifted from the state of J&K only for the verified users, telecom services were restored but the internet – services could be accessed at a 2G speed.

• The authorities had blindly extended the restrictions on mobile internet on 27^th May 2020 by citing terror incidents in the valley.

• The Supreme Court on a writ petition has ordered the government to establish a committee to determine the necessity on relentless restrictions on the speed of mobile internet services in J&K.

• On August 27, 2020, the apex court had asked the central government to explore the possibilities of 4G internet speed in 1-1 districts of J&K respectively. The 4G trial will initiates from 15^th august,2020 on the occasion of Independence Day.

The population of Jammu and Kashmir had struggled adversely after the abrogation of article 370 resulting internet shutdown for months, it has severely affected the education of numerous students and e-commerce activities.   

Apart from these incidences of disruption of internet services in north-eastern states including Assam, Meghalaya, Tripura in order to terminate protests against citizen amendment act (CAA) and internet blockade during Ayodhya verdict in different parts of the country surfaced many questions on the unregulated and arbitrary imposition of internet curfews in the country.

Internet Shutdown – An Infringement to Article 19(1)(a) and 19(1)(g) of Indian Constitution

The constitution of India evidently acknowledges and preserves the right to access and impart information through any medium including the internet as a part of fundamental right enshrined within Article 19 of the constitution of India.

In the landmark judgement of Faheema Shirin.R.K v. State Of Kerala[7], the high court of Kerala clearly held that the right to access the internet is a fundamental right of citizens within Indian constitution and it cannot be infringed by giving arbitrary and irrational reasons. The decision was further upheld by the apex court as well.

Further, in the case of  Anuradha Bhasin V. UOI[8], the apex court held that – the freedom of speech and expression [article 19(1)(a)] and freedom to practice any profession and to carry out business, trade and occupation are through the medium of internet enjoys absolute constitutional protection as a fundamental right and restricting the use of the internet for such purpose will be considered as a violation to fundamental rights.

Conclusion

In today’s contemporary world, the internet is undoubtedly considered as a vital medium ensuring communication, trade and commerce but from the past few decades, the government in several countries, particularly in India, had relentlessly issued the orders to the various internet service provider (ISP) for suspension of mobile internet services in different parts of India by giving extremely irrational explanations. The foundational brick of democracy heavily relies on transparent and accountable governance. Restrictions on access to internet services during extreme circumstances and unavoidable situations are justifiable but arbitrary internet curfews for infinite periods and without legitimate reasons are absolutely unacceptable and against the very essence of democracy. From the past few decades, the internet becomes an indispensable part of our lives and a sudden internet shutdown can adversely affect the livelihood, education as well as the economy of the country. Therefore, there is an immediate need for formulating more effective and constitution friendly legislations where the governance will be much more transparent and accountable to its citizens.

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References:

• The constitution of India
• Code of criminal procedure,1973
• Information technology act, 2000
• India telegram act,1855
• Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017
• www.researchgate.net
• www.scconline.com

[1] Re-Ramlila Maidan Incident Dt … vs Home Secretary and Ors. (23 February, 2012)

[2] Section 2(1)(a) of Information Technology Act, 2000

[3] Section 2(1)(v) of Information Technology Act, 2000

[4] Section 2(1)(k) of Information Technology Act, 2000

[5] As per section (3)(1) of the Indian Telegraph Act,1885 – “telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

[6] Dhirendra Singh Rajpurohit vs State Of Rajasthan and ors.,2018

[7] 19 September, 2019

[8] January 10, 2020