Internet shutdowns specifically mean disruption of access to the internet by imposing restrictions by the government of that country. It is also referred to as “digital curfew or Internet kill switch”. Moreover, these shutdowns may be restricted to shutting down internet services on mobile phones or blocking SMS services. This can be imposed across the entire nation or could be limited to a specific area or state. After the contentious revocation of Article 370, Kashmir continues its struggle to pave its way out and is still deprived of complete access to the Internet that violates numerous human, fundamental and constitutional rights granted by the Indian Constitution. This is not the very first time that an internet shutdown has been imposed in India. Moreover, since 2012 India has recorded 381 incidents of internet shutdowns. Though these shutdowns are imposed by the Government of India to maintain public order and tranquillity in India, still this has become a cause of concern, for the simple reason that it amounts to a direct violation of the fundamental right guaranteed under Article 19(1)(a) of Constitution of India that focusses on freedom of speech.
EVALUATING THE RIGHT TO ACCESS THE INTERNET
• Interpretation of Article 19 of the Constitution of India
Article 19 speaks about the Right to Freedom that lays down six rights granted to every Indian citizen such as – freedom of speech and expression, freedom to practice any profession or to carry out any occupation, trade or business, to assemble peacefully without arms etc, in the clause (1). However, these rights are subject to some reasonable restrictions stated in corresponding clauses that are from Article 19(2) to Article 19(6) , henceforth, it is not absolute.
Freedom of speech is laid down under Article 19(1)(a). The right to access and dissemination of information has been always protected under the realm of Freedom of speech and expression since the initial days of our democracy. With an increasing need for internet usage in every sector of work, the right to access the internet has subsequently turned out to be an offshoot of the right of freedom of speech and expression. Kerela was the first state to recognize the right to access the internet as a fundamental right.
• JUDICIAL PRONOUNCEMENTS SAFEGUARDING THE RIGHT TO ACCESS THE INTERNET
In the case of Maneka Gandhi v. Union of India, the Supreme Court held that Article 21 must be broadly interpreted and those rights must be protected that forms an essential part of life.
In the case of Shreya Singhal v. Union of India, the Apex Court considered the internet as an essential medium to further the right to freedom of speech and expression.
In the year 2019, the Kerela High Court recognized internet access as a ‘Fundamental Right’ in the case of Faheema Shirin v. State of Kerela being a part of the right to privacy and the right to education that are interpreted under Article 21.
LAWS GOVERNING THE INTERNET SHUTDOWNS IN INDIA AND JUDICIAL TRENDS CHALLENGING INTERNET SHUTDOWN ORDERS
In India, internet shutdowns are governed by two laws – Section 144 of the Code of Criminal Procedure of 1973 and Section 5 of the Indian Telegraph Act of 1995 in consonance with the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules of 2017.
• Section 144 of Crpc – This section deals with the conferring of wide powers on the State to take preventive measures that could be dealt with “imminent threat to public peace”.
In the case of Madhu Limaye and Anr v. Ved Murti and Ors.9( (1970) 3 SCC 746), the Apex Court has held that the scope of 144 is wider and extends further making an order either prohibitory or mandatory and urgency is the criteria that must be used to justify an order under this section. This section confers wide powers to the State government and the ambit of this section is mostly used to suppress unlawful assemblies and processions that are a hindrance to public peace.
This section does not explicitly confer powers on the government to impose internet shutdowns yet the wide and vague nature of the section subsequently let it be used in this manner. Hence, without any specific mention of internet shutdown in the section, the powers are conferred on the state due to its interpretation. As provided by law, such orders need to conform to the proportionality test. It also provides safeguards that require inquiries to made before the issuance of orders, that the orders contain material facts, that the orders are communicated to the affected parties, and that the orders only last as long as required. However, the reality is quite different as these steps are not followed in practice.
In the case of Gaurav Sureshbhai Vyas v. State of Gujarat (W.P.(PIL)No.191 of 2015), the shutdown of mobile internet services under section 144 was challenged in the Gujarat High Court as a PIL. The petitioner contended that the powers to block information on a computer-related forum were granted under section 69A of the IT Act, hence the State government was incompetent to use Section 144 of Crpc to impose a restriction on internet use. But, the Gujarat High Court, in this case, held that the State government is competent to use the power under section 144 as it is dependent upon three factors – discretion to exercise the power by the state government with prudence, public duty and the sufficiency of action in their view.
Apart from this, when the 2017 Telecom Rules were passed, the courts have held that section 144 cannot be used for imposing internet shutdowns and to suppress the legislative intent, but still some state governments continue to use it for this purpose.
• Section 69A of IT Act, 2000 – Though this provision does not directly deal with the internet shutdowns yet it confers powers on Central Government to issue directions for blocking of information on the internet for public access. The grounds on which this power can be exercised are –
1. Interest of sovereignty and integrity of India
2. Defence of India
3. Friendly relations with the foreign states or Public Order or for preventing incitement to commit any cognizable offence.
Prima facie, the provision deals with the power to block the access of certain websites but if one analyses the purview and applicability of the power exercised under this section, it is evident that these wide powers also include the power to issue directions for blocking information for access by the public on computer source, including information available on the internet.
Moreover, through the case of Shreya Singhal v. Union of India, the constitutional validity of Section 69A has been upheld by the Supreme Court. But several experts have claimed that the law needs to be crystal clear in terms of internet shutdowns.
• Section 5 of the Indian Telegraph Act, 1885 – This section is read with the 2017 Telecom Rules. The rules provide for safeguards that need to be complied with while passing an order of internet shutdown that includes that such an order must be a reasoned one and its copy shall be forwarded to the Review Committee within one working day and it must align with Section 5(2) of the act that grants powers to the government to take possession of licensed telegraphs and direct the interception of messages in the circumstance of any ‘Public Emergency’ or the interest of ‘Public Safety’
The safeguards stated under Rule 2 of the 2017 Telecom Rules are again not complied with. In the case of shutdowns imposed in Jammu and Kashmir, the state refused to produce orders on account of logistical difficulties but the courts finally compelled it to produce a few of the said orders. Therefore, the court favoured the state in implementing its own reasoning. Thus, it is crystal clear that the state became the final arbiter of its actions and the court failed to enforce the rights of the civilians.
LEGAL IMPLICATIONS OF INTERNET SHUTDOWNS
The internet is not just a medium to express one’s opinions but a significant element of the public infrastructure, education policy and most importantly, the fundamental right that is – The Right to Life. Internet shutdowns are not just a violation of the law but also have numerous severe consequences on the affected users who are cut off from availing emergency services, important health information, especially during this COVID-19 pandemic, transportation services, school classes that have already been switched to online modes etc. Moreover, the internet has become an indispensable segment in every sector and therefore, these shutdowns can cause hamstring effects on the national economy.
Internet access is one of the crucial aspects and has become a basic amenity in one’s everyday life. The right to access the internet is also now treated as a fundamental right after various judicial pronouncements and interpretations given by the courts till date. Though there are laws under which internet shutdowns are imposed in India, there is an ambiguity regarding these laws due to a lack of clarity in the provisions and this difficulty could be only relieved by the future pronouncements of the courts. Therefore, the courts need to play a vital role in explaining the laws crystal clear and interpreting the true legislative intent. The State must also comply with the rules as per the provisions and avoid acting as an arbiter. Also, the world’s largest democracy should now realise the severe impacts on its civilians due to the imposition of these internet shutdowns and make human rights its topmost priority.