-by Shaileshwar Yadav
In the year 2005, the Kingdom of Nepal cut off all the telecommunication links with the outside world. According to the Crown, shutting down of communication was essential to counter Maoist insurgents. The blackout continued for 88- days, frustrating the general public of Nepal. The results were deplorable – the virtual blackout alienated large swathes of the public. The collapse in the economy and the downfall of the Kingdom were some of its aftermaths. Reports show that the shutdown had a very limited success for which it was adopted. Maoist insurgents operated through a parallel communication method developed by them defeating the whole purpose of sanctions on virtual communication.
With the emergence of technology and the digital world, the internet has seen a steep hike in its users. The world has witnessed an extra-ordinary penetration on the internet, an increase of about 1,157 per cent, since the beginning of the 21st century. However, the digital world is not free from the interventions of the State machinery. Internet shutdown has been a catchall tool for the countries. But what is internet shutdown?
Internet shutdown refers to the practice of deliberate suspension of internet services in a limited area. For instance – in recent years, several countries have blocked web-based applications, telecommunication links or the entire internet. Governments have always relied upon reasons such as internal disturbance, security reasons, or prevention of future public disorder. Darrel West, in his paper, argues that these virtual breakdowns lead to the separation of people from their families, friends, and even livelihood. He also claims that the world has suffered a loss of 2.4 billion dollars in 2015 as an outcome of internet shutdown.
India has been no exception, with a total of 386 blackouts since January 2012 and is known as the global capital of internet shutdowns. A report by the Internet Advocacy Group claims that India has been leading the world with 67 per cent of total internet shutdowns recorded worldwide. The longest ever internet shutdown recorded was in Kashmir with a total of 213- days (4th August 2019 – 4th March 2020) virtual blackout. According to a report of the Software Freedom Law Centre (SFLC), the first preventive strategy was experimented to maintain law and order in Jammu and Kashmir in the year 2012- 13. The adoption of this strategy on the pan-India scale started from 2014 onwards, extensively used in states like Haryana and Gujarat during Patel and Jat agitation.
Section 144 of the Code of Criminal Procedure, 1973
Section 144 of the Code of Criminal Procedure, 1973 has been provided in Chapter X of the Code, titled Maintenance of Public order and tranquillity. It is one of the most frequently imposed legal sanction to halt internet services in India. It is now seen as a catch-all tool to suppress the dissent. In Anuradha Bhasin v Union of India, the Supreme Court held that the danger must be in the form of “emergency”. Also, in Madhu Limaye v. Sub Divisional Magistrate, Monghgyr, the court observed that “Urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences.”
In Anuradha Bhasin, the Court was also of the belief that Sec. 144 cannot be used to suppress the legitimate expression of opinion or exercise of any democratic right. Also, the Court held that ban on the internet is constitutionally protected under Article 19(1)(a) of the Constitution, that is Freedom of Speech and Expression. So, the restrictions imposed upon internet using Section 144 must fall under Article 19(2) ‘reasonable restrictions.’ The Supreme Court in Modern Dental College & Research Centre v. State of M.P., brought the concept of proportionality to check if the restriction is reasonable or not and striking a balance between fundamental rights and restrictions imposed by law. These were a) Legitimate goal b) rational connection and c) necessity. Considering an example of Gujarat where the internet was shut down following an exam to avoid cheating, the government could have prevented cheating using strict security measures in examination hall rather than shutting down internet and affecting the public at large, this strikes down the last two conditions. The legitimate goal is however more subjective, avoiding cheating is a legitimate aim but affecting the public at large outweighs this. Different measures could have been adopted like strict security measures in examination centres.
After Patel agitation in Gujarat and imposition of Section 144, a petition was filed in the Gujarat High Court, questioning the imposition of Section 144. The petition was dismissed by the Gujarat High Court and later by the Supreme Court in 2016. But it raised a very important question of how the imposition of Section 144 to ban internet is violative of the principle ‘special law must prevail over general law’ as observed in Suresh Nanda v C.B. I. How restriction can be imposed using Section 144 when there is Section 69 A of information and Technology Act, which allows restrictions of certain websites?
Also, what makes Section 144 arbitrary is the use of words such as ‘sufficient ground’, ‘likely to’, and ‘prevent’. Transfer of such vast powers in the hands of authorities which may impose a restriction on their satisfaction is what gives genesis to the arbitrary use of this provision.
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017
Commonly known as Suspension rule, this is the latest tool in the legal arsenal of government to justify the legality of internet shutdown. This rule derives its power from Section 7 of the Indian Telegraph Act,1885 (ITA), issued in the year 2017. This has been used as a shield to save the government from mounting criticism for using Section 144. The Supreme Court in Mazdoor Kisan Shakti Sangathan v Union of India, observed a repetitive use of Section 144 by the authorities and held it to be illegal, an example of how arbitrariness emerges from this Section. The Suspensions Rules were seen as a protection layer from arbitrary use of enormous power vested under Section 144.
The first layer is transferring power to higher authorities to issue internet shutdown orders. According to this rule, only the secretary in the Ministry of Home Affairs (Central government) and secretary to government in-charge of the home department (State government) can issue this order. However, in an emergency official of the rank joint – secretary or above has been authorised to issue an order, this order has to be confirmed within 24 hours by the above-mentioned officers. Meeting of review committee has also been added as an extra – protection measure. The meeting shall be conducted within five days to check the credibility of the order.
However, even after many safe-guards, there are loopholes in the said rule. Use of terms such as – ‘public emergency’ and ‘public safety’ which have a broad meaning, defeats the purpose.
Internet is not a luxury anymore, with ever-growing penetration and importance. Even the United Nation has vouched for the importance by declaring internet access as a basic human right. This step was criticised by some nations including India stating national security as a concern. Freedom and security have been diagonally opposite to each other. Even in the Indian context, the debate of internet shutdowns and public safety is a sub-set of freedom versus security. Power to shutdown internet flows from security whereas internet access has always been a part of freedom. The Indian Courts have been trying to balance the rights with public security.
The Kerala High Court in Faheem Shirin R.K. v. the State of Kerala, declared the Right to access the internet as a fundamental right under Article 21 of the Constitution. The Court held Right to internet forms a fundamental right under the Right to education and the Right to Privacy. This judgement not only provides for access internet but also admires the progressive constitutionalism.
However, the tallest court in the country is still unable to express its views on Right to access the internet. The Supreme Court pats its back for being a pillar in the thunderstorm of injustice. From saving the democracy in Keshavnanda Bharti v. State of Kerala and Anr to declaring the Right to privacy as a fundamental right in K.S. Puttaswamy v. Union of India, the apex Court has outshined itself as saviour. But, in Anuradha Bhasin v. Union of India, the Apex Court asserted Right to Freedom of Speech and Expression under Article 19(1)(a) and Right to Carry on Trade or Any Business under 19(1)(g), using the internet as a medium is Constitutionally protected. The Supreme Court abstained itself from declaring Right to access the internet under Article 21 of the Constitution. The dubious stand of the Supreme Court regarding the Right to the Internet as a fundamental right puts one in a dilemma. On one end the Court is expressing its belief over progressive mentality by protecting the internet under Article 19(1)(a) and 19(1)(g). At the same time cutting loose a large population, which looks up to the Court with all their hopes, by abstaining to declare Right to the internet in the scope of Article 21. The judgment in Anuradha Bhasin is more of a policy paper written on the broad subject of internet shutdown to the government with recommendations than a decree from the constitutional Court. The judgements of Right to privacy and the Aadhar judgement, are relevant here to discuss because it depicts the clear vision of how little ambiguity is used by the state to turn the tables in its favour. The paradoxical problem that arises after the judgment is how the decree must be read? The ambiguity in the judgments leads to doubtfulness and ultimate advantage of State machinery (Aadhar Judgement).
Saving India From Arbitrariness
It is the pressing need of the time to decide the fundamental value of the Internet. The Court must define a clear set of conditions in which this right can be abrogated and for how much interval. The values of a progressive Constitution must be uplifted. The onus of saving the public interest lies in the hands of the judiciary, which must examine each and every aspect. India is fortunate enough to have good examples to look at like the Kingdom of Nepal, which once tried muzzling the dissent of people. The fate of arbitrariness often finds its way to demolition. The political use of legal provision which hampers the fundamental rights of individuals in any sense must be restricted. The higher judiciary can intervene by appointing a committee in every state for the review of each and every internet shutdown. The review must be done within a stipulated time and the report must be taken seriously. If in case, the reports turn out to be negative, the judiciary must take Suo moto cognizance and must restore the faith of people.
[ Note –Supreme Court has formed a committee headed by Union home secretary to look into the issue of restoration of 4G services in Kashmir. Also, internet service has been snapped in Kashmir following a militant attack on 6th May 2020.]
The views are personal.
Image Courtesy: The Kashmir Monitor.
ABOUT THE AUTHOR
Shaileshwar Yadav is a second year law student at Dharmashastra National Law University.