INTERNET SHUTDOWNS & ITS LEGALITY

 ABSTRACT

India has become internet shutdown capital of the world as it enforced around 84 shutdowns in 2022 & was on top of the list for fifth year in a row as per the report of access now & keepiton coalition. Internet shutdown refers to deliberate disruption in access to internet services. It is often used by the government on the pretext of law & order concerns, National security, preventing exam cheating, curbing hate speech & fake news & public safety concerns. In this paper the author tries to find the legality of this tool & impacting the fundamental rights of the people as enshrined in the constitution of India. The author also dwells deeper in the legal provision backing internet shutdowns such as INDIAN TELEGRAPH ACT, 1885 read with TEMPORARY SUSPENSION OF TELECOM SERVICES ( PUBLIC EMERGENCY & PUBLIC SAFETY) RULES, 2017, Sec 144 of CODE OF CRIMINAL PROCEDURE & Sec 69A of THE INFORMATION TECHNOLOGY ACT, 2000. Further the author highlights the views of judiciary through landmark judgments for instance ANURADHA BHASIN V. UNION OF INDIA (2020). Finally the author analysis how far internet shutdowns can be used as a shield for national security & also suggest way forward to uphold the rights of the people & constitutional values.

Keywords: Internet shutdown, national security, public safety, fundamental rights, constitutional values, landmark judgments. 

INTRODUCTION  

Internet has become a part of life as a basic necessity. With the development of information technology internet is now an integral part of our life. In recent times internet shutdown is used as a tool by the government whenever there is a likelihood of violence, to prevent cheating. Or to prevent spread of misinformation or for other reasons.

India has become internet shutdown capital of the world as there were maximum internet shutdowns in the country. It is a blot on our democracy that in a country where freedom of internet access is recognised as a part of right to life & privacy is been violated due to internet shutdowns.  

The impact of Internet shutdown is wider than ever before on economy & education. People are dependent on internet for number of activities hence using internet shutdown as a low hanging fruit by government is an infringement of the rights of the citizen as enshrined in the  constitution. 

MEANING OF INTERNET SHUTDOWNS

An intentional disruption of the internet or electronic communications for a particular population or place in order to control the flow of information is known as an internet shutdown.¹ Internet shutdowns may be at local level, where Internet connectivity is restricted or cut off in a localized location for instance an examination center, or at a national level, where users nationwide are unable to access the Internet. ²

The government and law enforcement organizations, such as the Police, the Narcotics Control Bureau (NCB), the Research and Analysis Wing (RAW), etc., frequently engage in it. It is among the first actions that the government and law enforcement agencies conduct. This aids the government in dealing with the conflict as well. The majority of these shutdown incidents are linked to areas experiencing rioting or a state of disorder. Restoring control or preventing the spread of hate speech or provocations are the goals stated for using it.³

Of all the countries in the region, India till 2023 had the most number of internet shutdowns. The Indian State was the world's largest offender for the sixth consecutive year after interfering with internet connectivity at least 116 occasions in 2023. But in 2024 India was ranked 2nd after only Myanmar which imposed the highest number of internet shutdowns amounting to 85, where India imposed 84 as per the report of ACCESS NOW. The legality of internet interruptions in India has been hotly debated because, in this highly technologically advanced society, persons' fundamental rights are closely related to having adequate access to the internet.⁴

LEGAL PROVISIONS

The code of criminal Procedure, 1973

The government has historically used Section 144 of the Criminal Procedure Code to enforce internet outages in a number of locations. In circumstances of immediate nuisance or suspected danger, it empowers a DM, SDM, or Executive Magistrate to impose orders to preserve public order.⁵

¹ India's Internet shutdowns explained - The Indian Express available at https://indianexpress.com/article/explained/explained-the-frequency-reasons-and-controversy-over-internet- suspensions-by-the-government-8005450/ (last visited 25/10/23).

² Ibid.

³ Internet Shutdown & its legality in India available at https://bnblegal.com/article/internet-shutdown-and-its- legality-in-india/ (last visited 12/1023).

⁴ Nasra Fatima ,Legality of Internet shutdown in India Benett journal of legal studies 4 22 (2023).

⁵ The code of criminal procedure, 1973 ( act no. 2 of 1974), S. 144.

The Information Technology Act, 2000

Section 69A of Information Technology (IT) Act gives power to the Central Government or any officer authorised by it to issue directions for blocking of public access of any information through any computer resource in the interest of sovereignty and integrity of India, defence of India, the security of state etc. The Gujarat High Court in the case of Gaurav Sureshbhai Vyas v. the State of Gujarat upheld the competency of government to resort to Section 144 Cr.P.C while rejecting the contention that the government was incompetent to impose internet shutdown under Section 144 because the power to block information on a computer is related to Section 69A of IT Act.⁶

The Telegraph Act, 1885

Suspension Rules under Telegraph Act 1885: In 2017, Government promulgated Temporary Suspension of Telecom Services (Public Emergency or Public Safety)Rules under the Indian Telegraph Act, 1885.⁷ The rules provide certain safeguards to be adhered to while passing of an order of internet shutdown, some of which are as follows:

The Secretary to the Government of India the Home Ministry or the Secretary to the State go vernment in the Home Department in the case of a state, or an officer duly authorized by the Union Home Secretary or State Home Secretary in the event of an emergency, may issue orde rs to suspend telecom services.

Such an order must be confirmed by a qualified authority within 24 hours of being issued, an d it will be nullified if confirmation is not received. Section 5(2) of the Telegraph Act gives the government the "power to take possession of licensed telegraphs and to order interception of messages" in the event of a "public emergency" or in the interest of "public safety." Any such order must be justified, and a copy of it must be sent to the Review Committee within one working day. The committee must meet within five days to record its findings.The Supreme Court of India clarified in PUCL v. Union of India that "public safety" refers to a

⁶ The Information Technology Act, 2000 ( act no. 21 of 2000), S. 69A

⁷ The Telegrapgh Act, 1885 ( act no. 13 of 1885), S. 7

state or condition of people being free from risks or dangers, while "public emergency" refers to a sudden circumstance or state of affairs that affects the general public and necessitates prompt action.⁸

INDIA AS INTERNET SHUTDOWN CAPITAL OF THE WORLD

When it comes to implementing intentional internet shutdowns, India leads the world among democracies for the sixth year in a row. India conducted at least 84 shutdowns in 2022, more than any other nation for the year, according to data gathered by the #KeepItOn campaign and the international digital rights organization Access Now.⁹ At least 187 internet shutdowns across 35 countries were recorded in 2022. Authorities around the world shut down the internet due to “protests, active conflict, examinations, elections, political instability, and other high-profile national events” in 2022.¹⁰

The report states that authorities used shutdowns to try to hide serious rights violations and sever communications between individuals and communities, which also impacted human rights monitoring, including shutdown tracking and provision of humanitarian aid.¹¹

Some other key findings:

• Indian authorities disrupted internet access at least 49 times in Jammu and Kashmir, including 16 back-to-back orders for three-day-long curfew-style shutdowns in January and February.
• 2022 was also the year with the highest total number of shutdowns in the rest of the world to date.
• By the end of 2022, people in Tigray, Ethiopia had endured 2+ years of full communications blackout, and many remain disconnected. That is, 787+ days of Internet shutdown.

⁸ Supra note 7.

⁹ India remains internet shutdown capital of the world for fifth year running: Report available at.https://m.thewire.in/article/tech/india-remains-internet-shutdown-capital-of-the-world-for-fifth-year-running- report (last visited 228/10/23).

¹⁰ Ibid.

¹¹ Ibid.

According to reports, India implemented internet shutdowns 84 times; however there are concerns that the actual number may be higher due to the government's unwillingness to make shutdown orders publicly available, which is against the ruling of the Supreme Court.12

LOW HANGING FRUIT

According to Radhika Jhalani, Volunteer Legal Counsel at the Software Freedom Law Center, “internet shutdowns are an easy, low-hanging fruit to tackle law and order breakdowns”.13

A 2021 study by Dutch political scientist Kris Ruijgrok had, among other things, found that internet shutdowns have become a first – instead of a last – resort for officials challenged with communal or social unrest. There must be more awareness about the devastating impact of such shutdowns on the lives of ordinary people. “For instance, gig workers lose their livelihoods.14

TEST TO DETERMINE LEGALITY OF INTERNET SHUTDOWN

Restrictions on freedom of expression must be provided by law, pursuant to a legitimate aim, and necessary and proportionate to achieve that aim. The standard three-part test legal test for restrictions on the freedom of expression applies to internet shutdowns.15

Provided by Law

We have identified at least 27 countries, out of 44 studied, with laws that could possibly allow shutdowns. This sample suggests that most countries worldwide have some law or regulation on the books that could be used to shut down networks. Yet the analysis does not end there. Laws must clearly alert the community to expected norms of behavior and the bounds of the government’s power to enforce those norms. 16

General police powers and vague emergency and national security laws do not clearly instruct police on when control of telecommunications network is allowed, nor do they

12 Supra note 9.

13 Why India leads the world of internet shutdowns available at www.scroll.in (last visited 16/10/23).

14 Ibid.

15 Acess Now, “ Primer on Internet shutdowns and the law” 3 (2016).

16 Ibid.

clearly delineate to ISPs and the public circumstances in which shutdowns can lawfully be ordered. The duration of shutdowns often appears arbitrary, and laws do not clearly state how long they should be expected to last Procedure matters, as well.17

Legitimate Aim

The aims of most shutdowns -- including to disrupt public protests, stop cheating on exams, or to slow rumors -- almost never fall within the three legitimate aims of Art. 19(3) of the International Covenant on Civil and Political Rights (ICCPR). These aims are to be “implemented narrowly,” and vague references to security or social cohesion do not satisfy the need for a clearly articulated, legitimate aim.

Necessary and Proportionate

Shutdowns are neither necessary to, nor effective at, achieving a legitimate aim, as they often spread confusion and encourage more people to join public demonstrations. In the absence of more information about the actual harm that officials intend to prevent, the necessity of shutdowns cannot be proven.18

The proportionality prong is not met: shutdowns are disproportionate as a rule, impacting everyone within the range of the blackout or on a targeted network or platform, not simply those who may be carrying out or contributing to a proscribed activity.19

However, proportionality not only considers the number of individuals affected, but also the severity of the infringement of each individual’s human rights. The shutdown of a single cellular transmitter or tower in the vicinity of a public protest may impact only a small number of individuals; however the extent of the restriction on their freedom of expression -- an essential enabler of all other human rights in the digital age -- would be quite severe.20

FUNDAMENTAL RIGHTS & INTERNET SHUTDOWNS

Restricting internet access in order to keep people under control is against Articles 14, 19, and 21 of the Indian Constitution. The freedom to use the internet is a fundamental right, as

17 Ibid.

18 Supra note 15.

19 Ibid.

20 Ibid.

stated in article 19 subclause (a) of clause 1 of part III of the Indian Constitution. The significance of the internet extends beyond freedom of speech and expression; it has shaped every sphere of society throughout time, including the right to privacy under Article 21 of the Indian Constitution and the right to education under Article 21A.21

As per the authorities shutting down of internet in parts of Kashmir have saved lives but at the same time, when asked about the future of students they denied their role. As per the UN experts on the situation of Jammu and Kashmir the statement read that “the shutdown of the internet services and telecommunication networks, without justification from the government, are inconsistent with the fundamental norms of necessity and proportionality”.22

Faheema Shirin R.K. v. State of Kerala, 2019 SCC OnLine Ker 2976 the Kerala High Court held that the right to access the internet forms part of the rights to education and privacy under Article 21 of the Constitution.23

Publication and Transparency

A publication requirement is stated neither in the IT Act & Blocking Rules nor the Telegraph Act & Suspension Rules. In fact, the Blocking Rules actively mandate strict confidentiality of all complaints that seek shutdowns, and also of the actions taken on those complaints. Yet, the Supreme Court has treated publication of orders as an imperative requirement for any piece of legislation, whether primary or secondary, to have substantive validity.24

Indeed, publication is a requirement of natural justice:

Natural justice requires that before a law can become operative it must be promulgated or published…. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and

21 Pratibha Vyas, shutdown of internet in India: violation of freedom of speech & expression 1 (2020).

22 Ibid.

23 Faheema Shirin R. K. V. State of Kerala 2019 SCC OnLine Ker 2976.

24 B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658; Gulf Goans Hotels Co Ltd. v. Union of India, (2014) 10 SCC 673.

property by the mere passing of a resolution without anything more, is abhorrent to civilised man.”25

Gaurav Vyas v. State of Gujarat (Gujarat High Court)

In 2015, Gujarat witnessed mass agitations by the Patidar community demanding reservations in public sector jobs and education. When the state government started to lose grip over the law and order situation, it decided to impose a mobile phone internet shutdown in some parts of the state the Court held that the fields of operation of the two provisions were different. According to the Court, “Section 69A may in a given case also be exercised for blocking certain websites, whereas under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of Internet access.”

Banashree Gogoi v. Union of India (Gauhati High Court)

In December 2019, in response to widespread protests against the Citizenship Amendment Bill, 2019 in the State of Assam, the state government suspended - through repeated notifications issued daily - mobile internet services across the state by invoking provisions of the Suspension Rules. Several public interest petitions were fled against this shutdown. On 17th December, the Gauhati High Court noted that no incidents of violence had taken place in the past few days, and passed an order directing the state government to place on record “the entire material that weighed with the respondents in continuing suspension of internet/mobile data service”.The Court also directed the government to take a considered decision regarding restoring internet services considering the “improvement in the situation”.26

Anuradha Bhasin v. Union of India (Supreme Court)

This judgment extensively addressed the problem of internet shutdowns and their interplay with the freedom of speech.27

i. A fundamental right to internet?

25 Harla v. State of Rajasthan, 1951 SCC 936 : AIR 1951 SC 467 : 1952 SCR 110.

26 Banashree Gogoi v. Union of India, 2019 SCC OnLine Gau 5584

27 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

The court tried to answer whether the freedom of speech includes the freedom to communicate over the internet. . “There is no dispute”, says the Court, “that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible.” The Court notes the crucial role of technology and the internet in shaping everyday life in present times - both in terms of sharing information and trade and commerce. Since the freedom of speech is protected over various media of expression, and since the law must evolve with and adapt to technology, the Court held that Article 19(1)(a) protects the right to speak and express through the medium of the internet.

1. Production of Suspension Orders in Court

Since the contested internet shutdown orders issued under the Suspension Rules were "not available," the petitioners before the court were unable to present them. The respondent government openly acknowledged that the orders were unavailable. However, "citing difficulty in producing the various orders which were being withdrawn and modified on a day-to-day basis," it failed to furnish the orders themselves. Rather, the Government provided the Court with "sample orders" to review. The court ruled that the government had to record all orders for a variety of reasons.

1. The Legal Framework

The Court noted the three different legal regimes which exist under the IT Act, the CrPC and the Telegraph Act. First, giving “cursory” observations on Section 69A of the IT Act the Court held that the government cannot take recourse to this provision to “restrict the internet generally”, for the aim of this section is to “block access to particular websites on the internet”.28

The Court read two safeguards into the provision in the process. First, interpreting the Suspension Rules in light of Section 5(2) of the Telegraph Act, the Court held that the existence of a “public emergency” is sine qua non for the invocation of the Rules. Second, even though the Rules do not expressly mandate the publication of the orders passed there

28 Supra note 28.

under, the Court read this requirement into the Rules by holding that all such orders must be “made freely available… through some suitable mechanism.”29

iv. Reasonableness of the Restriction

Addition to recounting the well-settled principles against which the reasonableness, proportionality and least intrusiveness of a restriction should be measured, the Court acknowledged the serious security problems that have plagued the State of Jammu & Kashmir, and also the fact that the internet is a ready tool for modern terrorism. The ultimate question which would hence need to be answered in determining the validity of a restriction is “whether there exists a clear and present danger” that justifies the restriction. Certain factors are useful in conducting this inquiry.

In line with the above principles, the Court directed the government to : (i) publish all orders presently in force passed under Section 144 of the CrPC for suspension of telecom or internet services, and (ii) forthwith review all orders suspending internet or telecom services, revoking those contrary to this judgment. Nevertheless, the Court instituted a strict and meaningful review mechanism, thereby filling up the lacunae in the Suspension Rules. This development should, therefore, be welcomed.30

Foundation of Media Professionals v. Union Territory of Jammu And Kashmir, (also popularly known as 4G case)

3Gand 4G blanket ban was challenged. In this case it was said that bans like these violates right to education, right to health, right to profession and many more fundamental rights of the Constitution. The Hon’ble Supreme Court said that ‘there should be balance between national interest and human rights” and issued guidelines to resume 4G services and a committee was setup, after long discussions center decided to resume services in limited areas on a trial basis.31

29 Ibid.

30 Ibid.

31 Foundation of Media Professionals v. Union Territory of Jammu And Kashmir (2020) 5 SCC 746.

CONCLUSION

One could argue that Internet shutdowns ought to be reserved for special situations rather than being the standard. It is important to remember and implement the court's observation in the Anuradha ruling. A shutdown has a direct effect on non-communicative internet activities, which are becoming more and more important to our daily lives, in addition to communication. For example, a shutdown would make it impossible to book a taxi from the airport to a hotel or to purchase train tickets out of a town that is experiencing unrest.

Not only are some of these internet activities safe, but they may even save lives in unstable situations. Shutdowns could, in fact, result in the denial of health and education services during an epidemic and a nationwide lockdown. Considering the digital penetration prevalent in Indian society, a balance has to be struck between the interest of citizens who are affected by these internet shutdowns and the duty of State to deal with law & order situations.

BIBLIOGRAPHY

STATUTE

• The code of criminal Procedure, 1973
• The Information Technology Act, 2000
• The Telegraph Act, 1885 REPORT
• Access Now, “ Primer on Internet shutdowns and the law” 3 (2016).

WEBSITE

• www.scconline.com
• www.scroll.in
• Internet Shutdown & its legality in India available at https://bnblegal.com/article/internet-shutdown-and-its-legality-in-india/

ARTICLES

• Shrutanjaya Bhardwaj, Nakul Nayak, Raja Venkata Krishna Dandamudi, Sarvjeet Singh and Veda Handa, Rising Internet Shutdowns in India : A Legal Analysis IJLT (2020) 122
• Nasra Fatima ,Legality of Internet shutdown in India Benett journal of legal studies 4 22 (2023).

CASES

• Pratibha Vyas, shutdown of internet in India: violation of freedom of speech & expression 1 (2020).
• Faheema Shirin R. K. V. State of Kerala 2019 SCC OnLine Ker 2976.
• B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658; Gulf Goans Hotels Co Ltd. Vs. Union of India, (2014) 10 SCC 673.
• Harla v. State of Rajasthan, 1951 SCC 936
• Banashree Gogoi v. Union of India, 2019 SCC OnLine Gau 5584
• Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
• Foundation of Media Professionals v. Union Territory of Jammu And Kashmir (2020) 5 SCC 746.