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Content

• Why Access to Internet is Crucial?
• Why Internet Shutdown takes place in India (reasons given by government)?
• Legal Provisions governing internet shutdown in India
• Key issues with the legal framework
• Key Highlights of the Jan 2020 Judgment [Anuradha Bhasin & Ors vs. Union of India]

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Introduction

According to recent report by the US digital rights advocacy group Access now for the #KeepItOn coalition, India accounted for approximately 58% of all documented shutdown globally. For the past five successive years, India has topped the global list of states that cut off the internet to their citizens.

Why Access to Internet is Crucial?

• Internet acts as an enabler for the protection and enjoyment of human rights, especially freedom of expression and privacy: United Nations Human Rights Council (UNHRC) resolution in July 2021.
  • Political rights and Human rights are negatively hampered in the absence of internet. The violation of rights is difficult to highlight in an internet-less society.
• In Anuradha Bhasin & Ors vs. Union of India, 2020, the Supreme Court has declared that Freedom of Speech and Expression through the medium of internet is part of the fundamental right under Article 19(1)(a).
• Access to Internet for citizens increases government’s accountability: For e.g., Manipur Violence Case.

Other reasons why access to internet is important.

• Access to Health, Education, government benefits etc.
• Economy and Business:
  • According to Internet Freedom Foundation (IFF) the Indian economy lost an estimated $2.8 billion in 2022 – more than any other country so far due to internet loss.
• Journalistic loss.
• India’s dream of becoming digitally empowered society and knowledge economy is hindered by arbitrary internet shutdown.

Why Internet Shutdown takes place in India (reasons given by government)

• Maintenance of Law and Order: For e.g., during Manipur Violence in May-June 2023, Internet shutdown was in force to prevent rumor mongering and coordination amongst anti-social elements.
• Protection of National Security – for e.g., after the removal of special status of J&K under Article 370, internet shutdown went on for many months to prevent anti-India forces from mobilizing and coordinating.
• Prevention of Misinformation
• Internet shutdowns have also happened in India for unsubstantial grounds which violates the principle of proportionality.
  • To stop cheating during exams.
  • To prevent protests from taking place in an area

Legal Provisions governing internet shutdown in India.

• Section 144 of the Code of Criminal Procedure, 1973 (CrPC):
  • Till the year 2017, the internet shutdown was primarily imposed under this provision.
  • Most of the Internet shutdown even today are imposed under this.
• Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, (Issued under Telegraph Act, 1885)
  • Suspension of telecom services may be issued only through a “reasoned order” and only by the Union Home Secretary or the State Home Secretary for their respective governments.
  • It may only be ordered “one the occurrence of any public emergency” or “in the interest of public safety”, and if the issuing authority is satisfied that the suspension is necessary to safeguard “the interest of the sovereignty and integrity of India, the security of state, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence”.
  • By the next working day, the order must be placed before a three-member Review Committee, which decides within five days the order constitute a public emergency or threat to public safety under Section 5(2) of the Indian Telegraph Act, 1885.

Key issues with the legal framework:

• Lack of sufficient framework and Safeguards: This leads to fewer constraints on bureaucrats imposing internet shutdowns.
  • Problems with the working of Review Committee:
    • The Review Committee consist of only executive members. This hampers fair assessment since a single arm of government (i.e. the executive) is responsible for authorization, conduct and review of the internet shutdown, which constitutes a conflict of interest.
    • Review committee is also sometimes referred as a toothless committee as it doesn’t have the power to set aside an illegal suspension order and can only record its finding.
    • Five days given to review committee is not reasonable as most internet shutdowns are not more than five days long.
    • Lack of Transparency as the rules don’t mandate the publication of the review committee’s findings.
  • Issues with Suspension of Internet under Section 144 of CrPC
    • It doesn’t even remotely contain the procedural safeguards which the 2017 rules provide.
    • It also raises an important question – Should it be legally permissible for governments to resort to Section 144 of the CrPC – a general law providing for maintaining public order – despite the availability of legal regimes that specifically deal with internet shutdowns?
      • According to the well-known legal maxim generalia specialibus non derogant, “if a special provision has been made on a certain matter, that matter is excluded from the general provisions”
  • Blatant ignorance of Anuradha Bhasin Judgement: Governments have been issuing internet suspension orders, going against the spirit of the Anuradha Bhasin direction.
    • For e.g. Internet shutdown during examination to prevent cheating.

Key Highlights of the Jan 2020 Judgment [Anuradha Bhasin & Ors vs. Union of India]

• Access to Information and Freedom of Speech and Expression through the medium of internet is a fundamental right under Article 19(1)(a) of the Constitution of India.
• Freedom of Trade and Commerce through the medium of internet is also constitutionally protected under Article 19(1)(g).
• Any order suspending the internet under Temporary Suspension of Telecom Services (Public Emergency or Public Services) Rules, 2017 have to be:
  • Subjected to the principle of proportionality,
  • Backed by reasons,
  • For limited timeframe (not indefinite) and
  • Open for judicial review.
  • Note: Doctrine of Proportionality – In its present form in India, as held in Anuradha Bhasin, the doctrine demands scrutiny at various levels:
    • First, it requires the state to show the court that the basic aim that the restriction seeks to achieve is legitimate.
    • Second, the state must demonstrate that it has chosen the “least  lucrative”measure possible to achieve its purported objective; and
    • Third, the state must establish that there exists a rational nexus between the limitation imposed and its purported aim.
  • SC also required that orders passed by state under the Internet Rules as well as under Section 144, should be proactively placed before the court in writ proceedings and should be published.
    • Earlier, the order passed by the State of J&K were not even placed in public record.
• The judgment thus, widens the scope of freedom of speech and expression; promote transparency in decision making; limits arbitrariness of executive power ad harmonizes the legal outlook with that of UNHRC’s stand.

Other recent judgment related to Internet

• The High Court of Kerala in Faheema Shirin R.K. v. State of Kerala & Ors in 2019 had held Right to Internet Access as a fundamental right. The court said that access to internet becomes the part of Right to Education as well as Right to Privacy under Article 21 of the Constitution of India.
• Inspite of this judgment, problems continue, and India remains the Internet shutdown capital of the world.

Way forward

• Government should balance security with Right to Education, life and work.
• Take steps for effective implementation of Supreme Court verdict:
  • Provide Statutory Backing to directions laid down by the Supreme Court in the Anuradha Bhasin judgment.
  • Awareness of the law among administration:
    • For e.g. State of Meghalaya in an RTI reply stated that it wasn’t even aware of the judgment in Anuradha Bhasin case (even after 8 months of the judgement.
  • The Parliamentary standing committee on IT has called for setting up parameters and a robust mechanism for internet shutdown.
    • This guideline should include the conditions for imposition of internet shutdown and maximum duration for which the curfew can remain.
• Improving the review system in 2017 rules:
  • There is a need to codify defined parameters that constitute a public emergency and public safety and implement a mechanism to decide the merit of an internet shutdown.
  • The composition of Review Committee should be made more inclusive with more non-official members such a retired judges and public members.
  • Rules must be in tune with changing technology to ensure minimum disturbance to the public.
  • DoT should formulate a policy that selectively restricts specific services instead of a blanket shutdown. This will ensure that no inconvenience to the general public is caused and the objectives such as curbing misinformation, etc. are also met.
  • Standing Committee on Communication and IT has also made some recommendations like Department of Telecommunication should keep a record of number of Internet shutdown incidents.
  • Lay down a clear principle of proportionality and procedure for lifting the shutdown in coordination with Ministry of Home Affairs to prevent any abuse of the suspension rules.
  • It is important that a balance is maintained between human rights and freedoms with the issue of security.
  • Finally, a Constitutional bench of Supreme Court should look into if access to Internet a fundamental right is or not.

Conclusion: In today’s world, Internet is the most utilized and accessible medium for exchange of information. Thus, the internet shutdown should be a very rare step. Clear guidelines and protocols should be established for implementing internet shutdown to ensure that they are only used in exceptional circumstances.

Practice Questions:

• Critically analyze the legal framework surrounding internet shutdown in India [10 marks, 150 words]