VALIDITY OF INTERNET SHUTDOWN IN A DEMOCRACY
Author: Ujjwal Tripathi, II year of BA LLB from Christ (Deemed to be University), Delhi NCR
Introduction
Social media has turned out to be a characteristic of modern society, offering a platform for people to communicate, gather voices and speak up for themselves. Every small thing in our daily life depends on internet connectivity, including booking tickets and cabs online, finding routes on google maps, video calling our dear ones to share an opinion on Twitter, sending and uploading documents. Internet’s invention and further development, however, have both pros and cons. Democracies across the globe are resorting to internet shutdowns/internet blackouts because of some miscreants' activities such as exchange of privileged information, sedition, conspiracy against the government, online boycott, and protests.
Internet shutdowns are an absolute ban on the usage of Internet services because of an order imposed by a government body. It can be restricted to a particular location or territory and to a particular time period. It can also extend indefinitely sometimes. Internet shutdown can be restricted to cell phones or wired broadband connecting a laptop or both simultaneously.
Historical Background
The first time the Internet was shut down by government order was in 2005 when Nepal's government ordered the country's whole telecommunication network to be shut down for up to 48 hours. The second notable incidence of internet blackout happened when the Arab Spring, a wave of protests that swept the Middle East and North Africa in 2010-2011, signified the start of a pattern that only grew in protest cultures. The practice of the internet blackout spread rapidly to other nations, and the reasons were no longer limited to problems of political dissent or abuse on a wide scale. In the modern world when the suspension of the internet is becoming a "new normal," the extent and legality or validity of it remain uncertain.
Internet Shutdown in India
In India, internet shutdown cases are widespread because it has now become the favorite government weapon to curb any kind of real or merely apprehended threat. India has shut down the internet 385 times since 2012, leading the world in internet shutdowns over the last eight years.
The first incidence of shutting down of internet was recorded in India during the Kashmiri pandits riots in 2012.
In August 2019, the internet was shut down in Kashmir due to fears of a threat to people's safety following the government's decision to repeal Article 370 from the Constitution. It is said to be the world's longest internet shutdown in a democratic nation.
The most latest event is the internet blackout in portions of Delhi on December 19, 2019, in response to a surge in Anti-CAA protests.
Laws governing internet shutdown in India
Regardless of the fact that India's Constitution acknowledges access to the internet as a fundamental right, there are still restrictions on unrestricted access. These restrictions are what give government authority in regions of India to shut down the internet. The Indian government may order the shutdown of the Internet services under the scope of three laws:
1. CrPC Section 144
Previously, the government has used this section of the Criminal Procedure Code extensively to enforce internet blackouts in different regions. It gives authority to a District Magistrate, Sub-Divisional Magistrate, or Executive Magistrate in critical situations of nuisance or apprehended danger to issue orders to maintain public order. The State authorities' ban on mobile internet services was challenged in court for being illegal and ultra vires as it violated Articles 14, 19, and 21 of the Indian constitution during the 2015 Gujarat riots, but the petition was rejected by the apex court. The court held that the state administration has authority to ban the internet for the purposes of public safety under the scope of Section 144 of CrPc during the unfortunate times of unpredictable riot situations. This landmark judgment was adopted in Gaurav Sureshbhai Vyas vs. State of Gujarat, 2015
2. Section 69A of the IT Act, 2000
Section 69A of The Information Technology (IT) Act gives the central government or any officer allowed by it the power to issue directions for blocking public access to any information via computer resource in the interests of India's sovereignty and integrity, India's defense, state security, etc.
3. Temporary Suspension of Telecom Services (public emergency/ public safety) Rules, 2017 in conformity with Indian Telegraph Act, 1885
A major component in the government's rulebook was introduced in August 2017. The legality of internet suspension orders was previously ambiguous, but this legislation has now rendered them legal. The Ministry of Telecom of India enforced the Temporary Suspension of Telecom Services (public emergency/public safety) Rules, 2017. These regulations provided the Indian government sole authority to force competent authorities to legislate internet shutdowns in certain portions of the country. These rules were issued in conformity with Sections 5(2) and 7 of the Indian Telegraph Act of 1885. Government telecommunications authorities must also appoint nodal officers to handle suspension orders, according to the rules.
Constitutional provisions
Six fundamental freedoms are provided for by Article 19 of the Indian Constitution.
Freedom of the Press is an essential element in Article 19(1)(a) of the Constitution. Whenever digital curfews are enforced, there is a serious breach of press freedom. In August 2019, the government's decision to enforce an internet shutdown in Kashmir had a destructive and crippling effect on reporting, news processing, publishing, distribution, and sharing of information and also resulted in the banning of internet sites
An arbitrary closure of the internet threatens the livelihood of individuals engaged in e-commerce or online distribution systems and also causes barriers to the operation of e-banking services, hotels, etc.
It is undisputed, that no right is absolute. For reasons of state interest, security reasons, etc., reasonable restrictions can be placed on the enjoyment of these rights. Article 19(2) of the Indian Constitution also allows for the imposition of reasonable restrictions on grounds such as the interests of India's sovereignty and integrity, state security, friendly relations with foreign governments, public order, and so on. The government has the authority to suspend the internet but the question is to what extent the government can resort to this extraordinary measure so as to maintain the balance between liberty and security. Therefore, to ensure that internet shutdown orders are not enforced in a frivolous way, the state must adhere to the statutory principles, principles of natural justice, and principles established by judicial interpretation. The order to shut down the internet should be fair, rational and must stand the proportionality test.
Current position of the right to the internet in India
The Supreme Court recently ruled in the case of Anuradha Bhasin v. Union of India, which dealt with the internet shutdown imposed in Jammu and Kashmir from August 4, 2019, onwards, that the right to exercise freedom of speech and expression, as well as the freedom to practice any career or pursue any occupation, trade, or enterprise on the internet, is protected by the Constitution articles 19(1)(a) and 19(1)(g). Its restrictions shall be in accordance with Articles 19(2) and 19(6), including the proportionality test. The court, however, did not state an opinion on whether or not the freedom to access the internet is a fundamental right. According to the court, "none of the lawyers has argued for declaring the right to access the internet as a fundamental right," and "we do not share any position on the same."
Conclusion
Every individual has an indisputable right in a democracy to discuss daily events, including the burning issues of the day. The passage of a blanket order limiting a free citizen's access to internet resources is equivalent to that of a criminal. Moreover, the repeated suspension of the internet blackouts in India goes against Prime Minister Narendra Modi's Digital India initiative. The fact that internet shutdowns bring massive economic losses with them should not be ignored. A report on shutdowns in India conducted by ICRIER (Indian Council for Research on International Economic Relations) reported that 16315 shutdown hours cost the economy of the country approximately $ 3.04 billion from 2012 to 2017. Therefore, internet shutdowns must be resorted to as the last option and that too, given the need to strike a balance between State protection and individuals on the one hand and democracy and human rights on the other, in a careful manner.