The Author, Riya Rathi, is Founder and Director of LatestLaws.com.
Ever since the internet was created, it revolutionised the decimation of information and modes of communication in unprecedented ways, becoming the fulcrum of the right to free speech. However, the rapid widening of the internet’s reach and increased usage of social media platforms has led to a spurt in its misuse by way of spreading of hate speech, misinformation/fake news, religious bigotry and child pornography. The list is endless. To contain this misuse, in extreme situations of unrest, the State is compelled to take stringent actions like internet shutdown. The State has the responsibility to maintain a fine balance between exercising the right of free speech and the sovereignty of the State. This article scrutinizes the law governing the internet shutdown in India and also answers the fundamental question regarding the extent to which these restrictions can be imposed by the state.
Design-wise, the internet is a global network of computers, with almost 4.66 billion active users as of January 2021, encompassing 59.5% of the global population!
[1] Connecting billions of people around the globe, the internet is the stambh (pillar) of the modern information society. India, China & the United States rank ahead of all other countries in terms of internet users. The Internet provides a platform that is so powerful that it can be used for almost any purpose that depends on the provision and transmission of information. Apart from being a medium for human communication, the internet allows people to work collaboratively, conduct e-business, impart education, shop online, benefit from government initiatives and in the COVID-19 pandemic, the internet is even acting as a life-saver by being the medium for reaching out and extending emergency services. The internet has become such an indispensable part of our life that now we cannot even imagine a world without the internet.
Hence, the Internet is the key to fulfilment of many fundamental rights, especially the freedom of speech and expression which is preserved under Article 19 of the Universal Declaration of Human Rights and is granted protection by the laws of most countries. However, the degree to which this freedom is upheld varies significantly from one country to another. In India, this right is guaranteed under Article 19(1)(a) of the Constitution of India. Life is now dependent on digital communications throughout Indian society except in some rural and tribal areas. However, in India, the instances of internet shutdowns have been growing in number, for reasons ranging from curbing unrest to preventing cheating in an examination.
India, a vast country with the second largest population of 1.36 billion is also home to all the religions of the world with hundreds of dialects, cultures and sects. The challenges thrown by vested fringe elements by way of spreading misinformation via the internet is an area of huge concern. Consequently, India is currently leading the world in internet shutdowns. With 129 internet shutdowns in the year 2020, 106 shutdowns in the year 2019 and 134 shutdowns in 2018 alone, India has the greatest number of shutdowns by a huge difference as compared to other countries in the list like Pakistan and Yemen which had just 5 to 6 shutdowns in the year 2019 and 2020 respectively.
[2] It is interesting to note here that with 581 shutdowns in total, India does not only hold the record of most number of internet shutdowns but also the record for the longest internet shutdown in the history of 213 days which was imposed in Jammu and Kashmir 4th August 2019 onwards, when Article 370 of the Constitution was abrogated by the Parliament of India.
[3] Such indiscriminate internet shutdowns by the government not only result in curbing individual rights like free speech and cause public inconvenience but also lead to huge financial losses. Thus, internet shutdowns makes an interesting study as on the one hand they are forced implemented in the name of maintenance of peace, harmony and integrity by containing misinformation campaigns, on the other hand, they make inroads into the rights of the citizens to free speech, access to information and freedom of trade. The legality of internet shutdowns and the laws providing for safeguards against it, thus, gather more relevance in today’s time.
In August 2017, the Indian government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 under the Indian Telegraph Act, 1885
[4], which laid down the procedure to put restrictions on internet access. Before notification of these Rules, there were no coded processes to block telecom services and the internet in India. Earlier, internet shutdowns were ordered under Section 144 of the Code of Criminal Procedure, 1973 (CrPC), which gives District Magistrates broad powers to contain urgent cases of nuisance or apprehended danger to issue directions to maintain public order. Even after the notification of the 2017 Rules, many local shutdowns are issued under this Section.
For instance, in 2015, a community had planned to take out a march demanding its inclusion in the OBC category for reservation. To control law and order and prevent spread of false reports, an Order under Section 144 of CrPC blocking access to mobile internet services in Gujarat was passed. This got challenged before the High Court of Gujarat in the case titled Gaurav Sureshbhai Vyas v. State of Gujarat
[5], seeking permanent restrain on the State from imposing a complete or partial ban on the Internet. The High Court upheld the constitutionality of the restriction imposed by the Magistrate considering it to be a ‘reasonable restriction’ by State that is protected under Article 19(1) of the Indian Constitution and observed that Section 144 of the CrPC allows issuance of directions to certain persons who are the source for extending the facility of internet access. A Special Leave Petition filed in the Supreme Court against this decision was dismissed.
The 2017 Rules have empowered the competent authorities which are Home Secretary to the Union or State governments to issue a direction for blanket ban on internet services. It further provides that if in “unavoidable circumstances”, seeking prior direction of the Home Secretary is unfeasible, then such order can be issued by an officer, not below the rank of a Joint Secretary, duly authorised in this regard. However, the joint secretary is required to obtain confirmation of the suspension orders from the Competent Authority, within 24 hours of the imposition of the shutdown. Considering the cost of such decisions, the Supreme Court of India explained what a proper confirmation demands, stating that,
“Confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.”
[6] This brings us to the question whether there is an adequate supervisory mechanism to see that the competent authorities are discharging their duties properly with due application of mind. Rule 2(2) of the 2017 Rules, provides that any order issued by the competent authority shall contain reasons for such direction and a copy of such order has to be forwarded to the concerned Review Committee by the next working day. If shutdown has been imposed by the central government, the Review Committee comprises the Cabinet Secretary and the Secretaries of the Departments of Legal Affairs and Telecommunications. In the case of states, the committee comprises the Chief Secretary, Secretary - Legal Affairs, and a Secretary other than the Home Secretary. The Order must be reviewed by the Committee within 5 days to assess its compliance with Section 5(2) of the Indian Telegraph Act, 1885, under which the government has the power to intercept or block transmission of messages during public emergencies or in the interest of public safety. The telegraph authority & the service providers are required to designate officers as the ‘Nodal Officers’ to receive and handle such requisitions for suspension of the telecom services.
Apart from this, the Supreme Court
[7] has issued direction that the Review Committee must conduct a periodic review as well within 7 working days of the previous review and the Committee must not only look into the question of whether the restrictions are still in compliance with the requirements of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same.
Democracy works on the system of checks and balances so that no organ of the State transgresses its legitimate power under the law. However, under the 2017 Rules, except for a single Review Committee, which itself comprises members of the executive to assess the orders passed by the executive, there is no impartial and independent committee to check the equity or fairness of the shutdowns. However, the Supreme Court of India reposed some confidence and expounded that any order suspending the internet under the Suspension Rules shall be subject to judicial review.
It has also been noted that situations which compel internet shutdowns often involve issues that not only affect a particular State, and the nation at large. So, the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. Such a situation recently arose in the case of Foundation for Media Professionals v. Union Territory of Jammu and Kashmir
[8] wherein a writ petition was filed praying for restoration of 4G mobile internet and quashing of orders restricting internet speed to 2G in Jammu and Kashmir. The Apex Court was compelled to constitute a ‘Special Committee’ which is a hybrid review committee comprising of the Secretaries at national, as well as State level.
It must be further noted that the rules simply provide for a Review Committee whose scope is limited to decide the validity of the shutdown, there is nothing in the rules which envisages the procedure for lifting the blockade after a specific time. Soon after bagging the grim record of the longest internet shutdown which ended in March 2020, an amendment was made in November 2020 which restricts the operational time of suspension order to fifteen days. The word “temporary” has been used in the title of the suspension rules. Despite that, until November 2020, there was no indication of the maximum duration for which a suspension order can be in operation, hence, internet blackouts spanning hundreds of days were being recurrently imposed by the country.
Legislative organs must always endeavour to make laws clear & unambiguous by defining the important terms. Definitions assist in the interpretation and application of law which is in tune with the legislative intent. Neither the Indian Telegraph Act, 1885 nor the 2017 Rules, define the important terms “public emergency” & “public safety”, which are the only two grounds on which Internet shutdown can be ordered. In Hukam Chand Shyam Lal v. Union of India
[9], Supreme Court once again stepped in and clarified that the scope of the term “public emergency” used in the Rules, stating that,
“it relates to the situations contemplated under the subsection (Section 5(2) of the Indian Telegraph Act, 2017)
[10] pertaining to “sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence”.”
Not defining and limiting the ambit of such crucial terms, increase the chances of misuse of such laws, having great ramifications on the rights of the citizens. In 2018, in the state of Tamil Nadu, Police shot dead 13 people who were staging a protest demanding permanent closure of a copper plant for violating environmental regulations. Post the incident internet services were cut off to hide this blatant wrongdoing. Writ Petition was filed in the High Court praying for, inter alia, restoration of internet, in the case titled K. Kathiresan and Ors. v. State of Tamil Nadu and Ors.
[11]. The Madras High Court reprimanded the authorities and directed Secretary, Home Department to form a new committee towards ensuring that,
“in taking recourse to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, International Standards, recommended by the United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression are maintained.”
considers Internet shutdowns to be widely condemnable, disproportionate measures under international human rights law and considers deepening internet penetration to be essential both for freedom of expression and economic development.
As awful as it may sound, but it’s true that various Indian states like Rajasthan, Arunachal Pradesh, Kerala, West Bengal have actually imposed internet shutdowns to prevent cheating in examinations like state recruitment exams and even school exams. By no stretch of imagination can an examination fall even close to the ambit of ‘Public emergency’ or ‘Public safety’. Yet such shutdowns are being increasingly imposed which depict a sorry state of affairs. It must be understood that internet ban is a self-inflicted injury to the fundamental rights of its own citizens and economy.
Indeed, the rules are being misused by the State authorities due to various shortcomings mentioned above, but at the same time, such measures can’t be completely scraped off by declaring them unconstitutional as certain emergent situations do warrant the need to resort to such drastic measures. Coming to the landmark judgement in the case of Anuradha Bhasin v. Union of India
[12], which involved a batch of petitions challenging restrictions imposed on the internet, media & telephone services in Jammu & Kashmir pursuant to abrogation of Article 370 of the Constitution which conferred the special status of Jammu & Kashmir. The full bench of the Supreme Court noted that,
“There is no doubt that Jammu and Kashmir has been a hot bed of terrorist insurgencies for many years. In this light, we may note the State’s submission that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence. Modern terrorism heavily relies on the internet. Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech.”
However, the Supreme Court expounded that an Order suspending the aforesaid services indefinitely is impermissible as the restrictions contemplated under the Suspension Rules are only temporary in nature, the same must not be allowed to extend beyond that time period which is necessary. Recognising the complete broad suspension of telecom services, be it the Internet or otherwise, to be a “drastic measure”, the Supreme Court stated that it must be considered by the State only if “necessary” and “unavoidable”.
Internet shutdowns in 2020 have cost India a whopping $2.8 billion! They lead to significant loss of revenue for several sectors especially telecom, education, tourism, healthcare. States like J&K which are already under great distress due to terrorist insurgencies bleed even more when the internet is curbed. Thus, the States must explore and assess the existence of an alternate less intrusive remedy.
Earlier, the legality of shutdowns remained a shady area. By laying down the principle of proportionality and periodic review in the Anuradha Bhasin case, the Supreme Court has given in the much-needed impetus to prevent misuse. Further, in the Foundation for Media Professionals case, the top court laid down the territorial extent of the restrictions as one of the criteria for testing the proportionality. However, the Apex Court has still fallen short of declaring ‘access to internet’ a fundamental right.
The internet is a modern means of communication, but in no time, it has become one of our fundamental needs. The internet hosts close to 2 billion active websites connected via 50 billion devices. The current data size of internet is expected to be around 44 Zettabytes (1 zettabyte is the equivalent of 1 billion Terabytes or 36,000 years of HD video!).
[13] Internet is growing at an incredibly fast pace proportional to our growing dependence on it. The Supreme Court of India has rightly pointed out that “the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”
[14] In India, proactive judiciary can be seen making up for the legislative laxity. To keep the states in check and prevent misuse of the power to impose internet shutdowns there must be a powerful independent supervisory body. Majority of countries do recognise the fact that in order to contain emergent situations and keep fringe elements off the grid such restrictions may be essential. However, caution is the key to maintaining a fine balance of rights and restrictions to not go overboard. It must be ensured that such restrictive rules and measures must be resorted to only as a last resort, as they aren’t only perilous to fundamental rights of the citizens but also detrimental to the growth of the country and impede expansion of the pool of knowledge and ideas.
[1] Joseph Johnson, Global digital population as of January 2021, STATISTA, available at https://www.statista.com/statistics/617136/digital-population-worldwide/
[2] Neha Alawadhi, India had highest number of Internet shutdowns at 109 in 2020: report, BUSINESS STANDARD, available at https://www.business-standard.com/article/current-affairs/india-had-highest-number-of-internet-shutdowns-at-109-in-2020-report-121030301203_1.html
[3] Niha Masih, Joanna Slater, India’s Internet shutdown in Kashmir is the longest ever in a democracy, WASHINGTON POST, available at https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democracy/2019/12/15/bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html
[4] Indian Telegraph Act, 1885, available at https://www.latestlaws.com/bare-acts/central-acts-rules/media-laws/indian-telegraph-act1885/
[5] Gaurav Sureshbhai Vyas v. State of Gujarat, Writ Petition (PIL) No. 191 of 2015.
[6] Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1164 of 2019, available at https://www.latestlaws.com/latest-caselaw/2020/january/2020-latest-caselaw-24-sc/
[7] Id. at 3.
[8] Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, Writ Petition (Civil) D. No. 10817 of 2020, available at https://main.sci.gov.in/supremecourt/2020/10817/10817_2020_33_1502_22029_Judgement_11-May-2020.pdf (Last visited on September 6, 2021).
[9] Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128.
[10] Section 5(2) of the Indian Telegraph Act, 2017.
[11] K. Kathiresan and Ors. v. The State of Tamilnadu and Ors., Writ Petition No.16268 of 2018.
[12] Anuradha Bhasin, supra note 6 at 3.
[13] Thomas Barnett, Jr., The Zettabyte Era Officially Begins (How Much is That?), CISCO, available at https://blogs.cisco.com/sp/the-zettabyte-era-officially-begins-how-much-is-that
[14] Anuradha Bhasin, supra note 6 at 3.
