Constitutionality of Internet Shutdowns

THIS ARTICLE WAS WRITTEN BY DEVANSH SHARMA, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

It was the best of times, it was the worst of times,

it was the age of wisdom, it was the age of foolishness,

it was the epoch of belief, it was the epoch of incredulity,

it was the season of Light, it was the season of Darkness,

it was the spring of hope, it was the winter of despair,

we had everything before us, we had nothing before us,

we were all going direct to Heaven, we were all going direct the other way-

in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

-Charles Dickens in A Tale of Two Cities

Due to the continuous dissent of the citizens of Jammu and Kashmir in lieu of the recently passed Citizenship Amendment Act (CAA), which was expressed by way of protests involving people from all walks of life, the Government of India shutdown Internet and Telecommunication services without stating when the services will be reinstated, leaving thousands of citizens in fear and apprehension.

After the Internet shutdown, several instances of the grievances of the citizens have come forward, ranging from being separated from their family members to not being able to communicate with fellow citizens stranded amidst the chaos.

It is well known that dissent is a normal part of any democracy and is the democratic right of every citizen, so the act of shutting down Internet services is questionable and draconic in its own right.

Meaning of Internet Shutdowns-

Internetshutdowns.in[1], a website dedicated to the problem of shutdowns, defines what a shutdown is and what ought to be done during a such an event-

It explains an Internet shutdown as “a Government-imposed disablement of access to the Internet as a whole within a particular locality or localities for any duration of time”. There are two aspects present in the definition-

• Government imposes Internet shutdowns. ISPs (Internet Service Providers) cannot shutdown services on their own accord. The state always has a role to play in this regard.
• A shutdown is always of the nature of a blanket ban, wherein all services are disabled, rather than a surgical ban, wherein only a type of content or data is excluded or blocked from the general public.

Internet Shutdowns in India[2]–

India witnessed 6 Internet clampdowns in 2014, after which the number of shutdowns steadily rose to 14 in the year 2015. 2018 witnessed the highest number of shutdowns, which touched an alarming number of around 134, while the last year witnessed almost a hundred shutdowns. The statistics, presented by Shutdown Tracker Optimization Project are alarming, because of the quantity and impact of the shutdowns, the last one stated to affect more than 167 areas.

Due to the reoccurring shutdowns, India has now bagged the tag of “Shutdown Capital” of the world.

Provisions used to Invoke Internet Shutdowns-

Telecom Services Rules (Public Emergency or Public Safety) Rules, 2017- The recently formulated act empowers both the Central and State Government to shutdown Internet Services, for ensuring Public Safety in unruly situations. The government stated the reason for public safety while imposing this ban.

Section 69A of the Information Technology Act, 2005- This provision of the Information Technology Act 2005, which was also invoked in the landmark case of Shreya Singhal v Union of India, accords power to the government to issue directions for restricting public access to internet, imprisoning a person in case of default, etc.

Section 144 of the Code of Criminal Procedure read with Section 69A of Information Technology Act, 2005, provides the DM/SDM of a district with the power to prohibit gathering involving more than 4-5 people, in order to ensure public safety and to prohibit conflagrations and riots, or dangerous situations.

Constitutionality of Internet Shutdown and effects on Fundamental Rights-

UNHRC (2016) stated that “the same human rights that people have offline must be protected online.” The United Nations condemned Internet shutdowns and regarded them as a human rights violation, stating that it is violative of Article 19 of the Universal Declaration of Human Rights, which guarantees everyone the right to freedom of expression. The present shutdown is said to be amongst the longest shutdowns in the world, which has been in effect from August 2019. In the Indian Context, a shutdown is in violation of Article 19 of the Indian Constitution. India has already invoked the ire of several Human Rights Organizations for its Internet Shutdowns.

Not only does Internet shutdown affect citizens in terms of its legality, it hampers online businesses, access to information and news, and services such as banking and educational services which are hosted online. Several payment getaways are located online, as well as delivery services require Internet connectivity, thus it can be ascertained that an internet shutdown affects an individual’s life in every aspect.

Four U.N. special rapporteurs condemned the restrictions in Jammu and Kashmir, stating, “The shutdown of the internet and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality.”

Internet Shutdown cannot be said to be a reasonable restriction imposed by the Constitution of India, as there are several other methods to curb dissent rather than to fall to such extremities.

The Apex Court Ruling

The SC in Anuradha Bhasin and Ors. V. Union of India[3] (UOI) and Ors. That indefinite internet shutdowns violate the country’s laws concerning freedom of speech and expression. The government must pass an order describing the reason and duration of the shutdown each time it wishes to implement this action. However, the order won’t directly affect the ongoing internet shutdown in Kashmir at this time.

The court decided that the Indian government has to produce a restrictive order detailing the shut down within a week. For now, people in the region of Kashmir will be still offline.

The bench said the internet is a major part of citizens’ rights that guarantee freedom of expression. It added the government can only shut down the internet as an extreme measure. Plus, such an order will draw judicial scrutiny.

Additionally, local authorities can’t issue section 144 — which imposes a curfew in a territory and makes the gathering of four or more people illegal — to shut down internet or crackdown on dissent online.

Conclusion-

While maintenance of peace and order in society is of paramount importance, draconian measures in light of already perturbed areas should not be resorted to. The shutdown, amongst other measures taken by several authorities due to the situation at Jammu and Kashmir is a clear violation of Human Rights, and cannot be allowed to sustain. The government ought to create a balance between the rights of the citizens and ensure checks and balances on the same.

Several reports of the anguish and sufferings of the citizens have come into light due to the shutdown, and the shutdown is creating an environment of fear in an already troubled time. The government must exercise the power to impose shutdowns with extreme care and caution, so as to ensure that no rights are violated due to the same. Such an approach shall be beneficial in the interests of the state in the long run.

[1]Available at Internetshutdowns.in, Accessed on 13/03/2020.

[2]Available athttps://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf, Accessed on 13/03/2020.

[3]Anuradha Bhasin and Ors. V. Union of India, (2020)1MLJ574.