Nowadays, India is widely considered to be a world leader in cutting off access to the Net.
Yet, there are no detailed official data on Internet shutdowns in India.
Taking a serious note of the situation, the Supreme Court has for the first time set the stage for challenging such suspension orders before courts.
It has directed the government to mandatorily publish all orders permitting Internet shutdowns. It has opened such decisions amenable to judicial review.

Internet shutdowns in India

The cutting off internet access to control restive populations is an increasing trend around the world with India at the lead.
Of the 196 shutdowns in 25 countries documented by Access Now in 2018, as many as 134 were in India, followed by Pakistan (12).

Legal mechanisms allowing shut-downs

Home Departments in the states are mostly the authorities that enforce shutdowns, drawing powers from The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
The decisions are reviewed by a state government review committee. The central government also has powers under this law, but has not used it.
Section 144 of the Code of Criminal Procedure has enabled many of the shutdowns in the recent past, especially until the time the telecom suspension Rules came into force in 2017.
Less frequently used is The Indian Telegraph Act, 1885, whose Section 5(2) allows central and state governments to prevent the transmission of messaging during a public emergency or in the interest of public safety or in the interests of the sovereignty and integrity of India etc.

Who can pass the orders of Internet Shutdowns?

The Rules, issued under the Indian Telegraph Act, 1885, stipulate that only the Home Secretary of the Union or a state can pass an order, and that the order must include the reasons for the decision.
The order should be forwarded to a review committee the day after it is issued, and must be reviewed by the committee within five days to assess its compliance with Section 5(2) of The Telegraph Act.
Under this the government has the power to block the transmission of messages during a public emergency or for public safety.
In the case of 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, Law or Legal Remembrancer In-Charge, Legal Affairs, and a Secretary to the state government (other than the Home Secretary).

Who else can issue such orders?

In “unavoidable circumstances”, the order can be issued by an officer of the rank of Joint Secretary or above, authorised by the Centre or the state Home Secretary.
Telecom service providers must designate nodal officers to handle such requests.

What laws governed this area before the 2017 Rules were notified?

Internet shutdowns were ordered under Section 144 of the CrPC, which gives District Magistrates broad powers during dangerous situations.
Even after 2017, many local shutdowns are issued under this law. Section 69(A) of the IT (Amendment) Act, 2008 gives the government powers to block particular websites, not the Internet as a whole.

Why such shut-downs?

Worldwide, Internet shutdowns are typically used when there is civil unrest, in order to block the flow of information about government actions or to end communication among activists and prevent the spread of rumours and fake news.
Internet serves as a medium for the transmission of information through pictures, videos and text that have the potential to cause civil unrest and exacerbate the law and order
Check Fake News: Internet shutdowns are typically used when there is civil unrest, in order to block the flow of information about government actions or to end communication among activists and prevent the spread of rumours and fake news.
Shutdown helps prevent the “spreading of rumours and misinformation using social media platforms which can hinder peace and law and order”.
Preventive Response: Cutting off the Internet is both an early and preventive response to block restive groups to organise riots against the Government.
National Interest: The Internet cannot be independent of national sovereignty. Therefore, the necessary regulation of the internet is a reasonable choice of sovereign countries based on national interests.

Kashmir deprived of Internet

The Centre has never ordered a nationwide Internet shutdown. Still, India tops the list of Internet shutdowns globally.
According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
The ongoing shutdown in Kashmir is the longest ever in any democratic country.
The erstwhile state has seen 180 Internet shutdowns since 2012, according to SFLC.
The most commonly offered reasons for cutting access have been “encounter between security forces and militants”, “massive search operations”, “gunfights”, and “attack on CRPF men”.

Issues with the Kashmir Shutdown

The Internet shutdown in Kashmir was not compliant with the Rules.
The Rules require the suspension to be temporary; also, the orders did not provide reasons for the restrictions.
The petitioner contended that the order claims a law-and-order danger, as opposed to a public order danger specified in the Rules.

Justifying the Kashmir situation

Lastly, the court-mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately.
What the centre was arguing, in this case, was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.

Supreme Court Judgement on Internet Shutdowns

What did the court say?

The court ordered the government to review its order, ruling that the freedom of speech and trade on the Internet is a fundamental right.

The court said that because the Rules require the order to be in accordance with Section 5(2) of The Telegraph Act, the order must be during a “public emergency” or in the “interest of public safety”.
Also, the suspension must be “necessary” and “unavoidable”.
In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy,” the court said.
The Bench also said that the State should make the orders freely available, even though the Suspension Rules do not specify this.
The Rules also don’t specify a time limitation for the shutdown, the use of “Temporary” in the title notwithstanding. The Bench decided that an indefinite suspension is “impermissible”.

The prime mover for the Judgment

The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act deals with restricting Internet access.
It does not provide for publication or notification of the order suspending Internet, the apex court-mandated that such orders must be made available to the public.
The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
This allows individuals to now challenge the orders before courts in J&K and rest of India.

Internet suspension orders are subjected to Judicial Review

In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka.
There should not be an excessive burden on free speech even if complete prohibition is imposed, and the government has to justify the imposition of such prohibition and explain why lesser alternatives were inadequate, the bench stated.
It ruled that Restrictions are to be imposed in an emergency. Hence they must be proportionate to the concern. Their objective must be legitimate rather than cavalier.
Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.

Pacing up with technology

The bench also noted that the law needs to keep pace with technological development:
We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
Non-recognition of technology within the sphere of law is only a disservice to the inevitable.

Internet as a necessity

Lifeline for people

While the Internet is certainly the main source of information and communication and access to social media, it is so much more than that.
People working in the technology-based gig economy — like the thousands of delivery workers for Swiggy, Dunzo and Amazon and the cab drivers of Uber and Ola — depend on the Internet for their livelihoods.
It is a mode of access to education for students who do courses and take exams online. Access to the Internet is important to facilitate the promotion and enjoyment of the right to education.
It is also a mode to access to health care for those who avail of health services online.
It is a means for business and occupation for thousands of small and individual-owned enterprises that sell their products and services online.

Legal basis for Right to Internet

The access to the Internet is a right very similar to what the Supreme Court held with respect to the right to privacy in Justice K.S. Puttaswamy
The Human Rights Council of the United Nations Resolution dated July 2, 2018, on the promotion, protection and enjoyment of human rights on the Internet, made important declarations.
It noted with concern the various forms of undue restriction on freedom of opinion and expression online, including where countries have manipulated or suppressed online expression in violation of international law.
It said that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.

The Kerala case

The High Court of Kerala made a start to the domestic recognition of the right to Internet access.
The judgment in Faheema Shirin R.K. v. State of Kerala & Others holds that “…a rule or instruction which impairs the right of the students cannot be permitted to stand in the eye of the law.”
It notes that mobile and broadband Internet shutdowns impact women, girls, and marginalized communities more disproportionately than others.

Trauma of shutdowns

Economic impact

While there is no proven benefit of closing down the internet, there are serious economic repercussions.
A report by the Brookings Institute adjudged India to have topped the list by incurring losses to the tune of $968 million in 2016 itself.
Over the past five years, some 16,000 hours of Internet shutdowns cost the economy a little over $3 billion, according to estimates in a report by the Indian Council for Research on International Economic Relations (ICRIER).

Governance hurdles

In Sept. 2018, the Dept. of Telecommunication had acknowledged the adverse impact of a rising number of internet shutdowns that State governments are ordering.
The Govt. has embarked upon a programme to deliver services through mobile and internet apart from promoting a cashless economy.
Neither banking transactions using credit and debit cards nor internet banking can be done, which leads to hardships to common citizens.

No permanent solution

The practice of shutting down the internet not just disrupts the smooth functioning of the state at large but is also not in line with the fundamentals of democracy.
Internet shutdown cannot be a solution to a larger governance problem.
Shutting down the internet may result in information blackout that can also create hysteria, panic.

Conclusion

It is time that we recognise that the right to access to the Internet is indeed a fundamental right within our constitutional guarantees.

The Internet is pretty much a basic human right, even if not legally defined as such, for most parts of the world — without access to the virtual world, a very large number of vital human activities simply stops.
Internet shutdowns leave people without access to information and other services that could be the difference between life and death.
It is in recognition of the Internet as a human right that the UN in 2016 passed a non-binding resolution condemning countries that disrupt Internet access to its citizens.

Way Forward

There exists no qualitative or quantitative evidence to show that internet shutdowns are effective tools to restore normalcy.
In fact, the internet itself can be used to resolve the problem. For example, the Government can have verified sources to spread legitimate information across various mediums stating areas that are safe/affected the updated status of the situation, etc.
State interests like security are important because they are the prerequisites for us to exercise our freedoms. However, in pursuing this, the freedoms themselves cannot be suspended.
Therefore, the government needs to clearly lay down a comprehensive framework, stating the conditions behind such Internet shutdowns.