The 21st century better known as the age of the world wide web has revolutionized the working of every sector, industry and organization using the internet as the catalyst. Shopping, eating, learning, earning or chatting, you name the activity and it has been dominated by internet services. Growing at the rate of 11 users per second, 1 million users each day and having 4.4 billion people under its purview[1], the internet has become the biggest platform for; exchange of thoughts and ideas across nations, instigating rebels or protest against any unjust happening as seen with the #metoo movement and most importantly discussing as well as criticizing government actions, policies and propagandas. Having gained such enormous potential to influence opinions and impact changes, every Government from the most autocratic ones like China to the most democratic ones like India are constantly in pursuit of establishing excessive control over the internet in the excuse of maintaining public order, integrity and security of the country, often leading to violation of fundamental and human rights. This article will shed light on the same by tracking the various instances of internet shutdown in India, critical examining the policies, rules and acts that empowers the Government with disabling internet services in relation to the fundamental rights enshrined in the Indian constitution and the human rights guaranteed by the universal declaration of human rights (UDHR) and thereby exploring ways to strike an equilibrium.
India, despite being acclaimed as one of the most democratic states in the world, does not fall behind in censoring Internet services, leads the chart by accounting for 67% of the total internet shutdowns in the world in 2019[2]. Initiating the trail by three reported shutdowns in 2012, the number has increased exponentially to 134 and 104 shutdowns in 2018 and 2019, respectively[3]. With a single state in India namely Kashmir amounting to more internet shutdowns than countries combined including Bangladesh, Mali, Yemen, Iraq, Ethiopia and Congo[4], India has arguably earned the title of being the Capital of the world when it comes to Internet shutdowns. The most recent incidents come amidst the protest in various parts of the country regarding the abrogation of Article 370, the introduction of the Citizenship Amendment Act and have now just become a norm accompanying any unrest or disruption.
Internet shutdowns having attained such unexpected normality, it becomes imperative to examine the legal backing that the Government enjoys implementing these shutdowns. The primary justification comes from the terms of the contract itself as the internet service providers are mandated to sign contracts with provisions for the Government to suspend services on certain security conditions[5]. The provision would read as section 39.15 under license agreement for a unified license as per the ministry of communication and IT which is as follows;
“The Government, through appropriate notification, may debar usage of mobile terminals in certain areas in the country. The LICENSEE shall deny Service in areas specified by designated authority immediately and in any case within six hours on request. The LICENSEE shall also provide the facility to carry out surveillance of Mobile Terminal activity within a specified area”.[6]
Section 5(2) of the Indian Telegraph Act 1885[3], though not explicitly crafted for the internet, also gives expansive powers to the state to justify its actions[7]. Section 144 of the CrPC which reads as follows;
“(Officers may) direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.”[8]
Is the most routinely used legal measure by the Government to impose a partial or complete ban on internet services? Having survived through numerous amendments and challenges to its constitutionality, the colonial relic still continues to be responsible for most of the shutdowns. Incorporating words like “likely” and “tends” the section becomes subjected to varied
interpretations and lays the bases for arbitrary and excessive abuse of powers by the executive. Further the broad and loosely linked words of “annoyance”, “obstruction”, “injury” and “disturbances” could be manipulated in several ways to safeguard and justify every action of the state[9]. The loose architecture also becomes evident in the Shreya Singhal’s Case[10] wherein Section 66A of the Information Technology Act, 2000 was regarded as unconstitutional for being violative of Article 19(2) and was held that unless completely necessary, the right of freedom of speech and expression can not be taken away. But this could not be applied to Section 144 due to the vague expressions which seemed to be of necessity for public morality, order and safety. The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017[11] are the most recent legal backing the Government enjoys. It does put a couple of checks and balances, the first being that the order should be made by a “competent authority” which is the Secretary in the Ministry of Home Affairs or the Secretary to the State Government in charge of the Home Department. The second being that the order should be passed by a review committee, which ensures compliance with Section 5(2) of the Indian Telegraph Act[12]. Despite these measures, the state has not reduced exploitation of its arbitrary powers, rather has used this to its advantage riding on few ambiguous and broad terms like “public safety” and “public emergency” to justify its actions.
The legal cushion has given to these shutdowns more often than not tend to violate the civil liberties of citizens and have an adverse impact on the economic conditions too. As per the report by ICRIER, mobile internet shutdowns have costed the Indian economy $2.37 billion during 2012-2017[13], and as per a report by Deloitte, the average GDP impact amounts to $6.6 million per 10 million population for medium connectivity economies[14]. However, the principal concern remains the abuse of fundamental rights, especially the Right to Freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution and basic Human Rights provided by the universal declaration of human rights (UDHR). Internet is the most commonly used platform to express, share and communicate one’s views and thoughts, censoring or prohibiting its access critically undermines the Freedom of speech and expression, especially when the reasons do not comply with those provided under Article 19(2). The United Nations too has regarded access to the internet as a fundamental right in 2016 and has held disconnecting people from internet services a violation of human rights against international law[15].
The tussle between the two aspects of law; one providing legality to internet shutdowns and other opposing the same for its numerous violations, has been ongoing since the inception. It is high time that the tussle transforms to a combined effort which finds common ground, wherein the nation’s security considering citizen’s right, can be appropriately executed, and neither of them overrides the other. Having plenty of regulations in place, it becomes crucial for the judiciary to constantly review the actions of the executive and also set out guideline by appropriately interpreting the keywords and clarifying the ambiguity present. It also becomes the public’s duty to realize and respect acts done with a larger interest, especially for national security and be instrumental in building, developing as well as maintaining the cooperation and ultimately decoding “Internet shutdowns”.
[1] Jeannie Dougherty, Internet growth + usage stats 2019: Time online, devices, users, ClickZ (May 1, 2019), https://www.clickz.com/internet-growth-usage-stats-2019-time-online-devices-users/235102/
[2] As per the Data Intelligence Unit (DIU) of India Today.
[3] As per https://internetshutdowns.in/ website tracking internet shutdowns since 2012.
[4] Asmita Bakshi, India is the internet shutdown capital of the world, livemint (Dec. 08, 2019, 5:22 PM), https://www.livemint.com/mint-lounge/features/inside-the-internet-shutdown-capital-of-the-world-11575644823381.html
[5] Shikhar Goel, Internet Shutdowns: Strategy to Maintain Law and Order or Muzzle Dissent?, EPW (Oct. 20, 2018), https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law
[6] License agreement for unified license, pg.38,http://dot.gov.in/sites/default/files/Unified%20Licence_0.pdf
[7] Indian Telegraph Act, 1885, http://dot.gov.in/act-rules-content/2442
[8] Code Of Criminal Procedure, 1973, pg.66, http://legislative.gov.in/sites/default/files/A1974-02.pdf
[9] Shikhar Goel, Internet Shutdowns: Strategy to Maintain Law and Order or Muzzle Dissent?, EPW (Oct. 20, 2018), https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law
[10] Shreya Singhal vs. Union Of India, (2015) SC 1523.
[11] The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, http://dot.gov.in/sites/default/files/Suspension%20Rules.pdf
[12] Software Freedom Law Centre (Sept. 23, 2017, 3:22 PM), https://sflc.in/new-rules-temporary-suspension-telecom-services-case-public-emergency-or-public-safety
[13] The Anatomy of an INTERNET BLACKOUT: Measuring the Economic Impact of Internet Shutdowns in India, Indian Council for Research on International Economic Relations (ICRIER) (Apr. 2018), Pg.10, http://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf
[14] The economic impact of disruptions to Internet connectivity, Deloitte (Oct. 2016), https://www2.deloitte.com/global/en/pages/technology-media-and-telecommunications/articles/the-economic-impact-of-disruptions-to-internet-connectivity-report-for-facebook.html
[15] David Kravets, U.N. Report Declares Internet Access a Human Right, WIRED (Mar. 2011), https://www.wired.com/2011/06/internet-a-human-right/
