Internet shutdowns: Legal angle

Reading time: 6-8 minutes.

Dissent is an integral ingredient of a democracy, expressed by the exercise of the fundamental right of freedom of speech and expression. Online platforms such as Twitter, Facebook and many others function as gateways for citizens to express their views and opinions about the issues and affairs affecting a democracy.

India, being the largest democracy in the world, has the largest number of Twitter and Facebook users and the youth of the country make use of these platforms to have their voice heard.

In the wake of the recently passed Citizenship Amendment Act, there are widespread protests across the country with people from all walks of life coming out to the streets to protest against the new legislation.

The Government has cut off internet and communication services in many parts of the country without any warning, rendering thousands of people helpless as they are unable to communicate with their families and access Internet services.

Businessmen are not able to carry out their business activities and incur huge amounts of losses which increases with each continuing day of a shutdown.  India witnessed six Internet shutdowns in 2014 which rose to 14 in 2015.

The number peaked in 2018 to 134, and by December 15, 2019, there have been 93 shutdowns. According to Shutdown Tracker Optimization Project data by accessnow.com, a website based on Internet activism, in 2019, Internet shutdowns were announced in India 93 times, which impacted a total of 167 areas.

India has now earned the tag of “Shutdown Capital” of the world due to an alarming rise in the number of shutdowns in the recent times. A website named internetshutdowns.in has been dedicated to this issue of shutdowns, explaining what a shutdown means and what needs to be done during a shutdown.

It defines an internet shutdown as “a Government-imposed disablement of access to the Internet as a whole within a particular locality or localities for any duration of time”. There are two key-components to this definition:

  1. An Internet shutdown is always Government-imposed i.e. Internet Service Providers serving the locality in question are ordered by an agency of the Government to cut-off Internet services to that area
  2. An Internet shutdown always imposes a blanket ban on Internet access, where access to the Internet as a whole is disabled, and not a surgical ban, where access to particular content/services is disabled leaving access to other content/services unaffected.

Provisions for shutdown

The Government has the authority to order for a shutdown by the virtue of Section 69A of the Information Technology Act, 2005. It provides that the Central Government has the power to issue directions for blocking for public access of any information through any computer resource.

Central and state governments have the power to direct telecom service providers to shut down services, including internet access, by virtue of the Temporary Suspension of Telecom Services Rules (Public Emergency or Public Safety) Rules, 2017.

The law has no sunset clause, or a time limit on the order, which means that it can be enforced in some pockets of the country, and lifted in others, according to what the government decides.

Another major provision used by the Government in connection with Section 69A of the IT Act is Section 144 of the CrPC. It provides that the District Magistrate or a Sub Divisional Magistrate can issue an order to prohibit an assembly of four or more people in an area.

By making assemblies unlawful, this section is imposed to prevent public nuisance or danger. In most of the recent shutdowns, both these provisions were imposed with the Government citing security and maintenance of public order as reasons.

Effect of internet shutdown on fundamental rights and implications in a democracy:

An Internet shutdown means a blanket ban on all internet and mobile services causing a standstill in the lives of many. India has become notorious for cutting off access to the internet in different pockets of the country at difficult times.

The government has ordered internet access to be cut as many as 95 times this year, and Kashmir, where access was cut on August 4, is witness to one of the world’s longest-ever such shutdowns.

It is of no doubt that a shutdown places a restriction on the exercise of the fundamental right of freedom of speech and expression as provided by Article 19(1)(a) of the Constitution. The United Nations has condemned internet shutdowns as a human rights violation, stating that it violates article 19 of the Universal Declaration of Human Rights, which guarantees everyone a right to freedom of expression.

A 2016 resolution by the UNHRC clearly states that “the same human rights that people have offline must be protected online.”

Internet was declared as a fundamental right in 2016. Social media platforms are becoming the new hub of discussions and debates and is a medium for personal and professional communication.

By shutting down all internet as well as mobile services, there is a flagrant violation of Fundamental and Human Rights. Individuals cannot access news sites or express their views or opinions on social media platforms. Banking services such as net banking, cashless payments and others have become ghosts of the past.

There are several reports stating that individuals cannot make payments at restaurants and shops. Shutdowns have not only curbed free speech and expression but has affected almost every sphere of an individual’s life.

Arbitrary Internet shutdowns are not only an attack on the civil liberties and the constitutional rights of the citizens, by the State, but they have grave economic consequences too, with businesses and working professionals losing out on sales and job days.

Even though Article 19 stipulates that restrictions can be placed on the freedom of speech and expression, Internet shutdowns of such an intensity do not justify the objectives of such restrictions.

Four U.N. special rapporteurs condemned the restrictions in Jammu and Kashmir, stating, “The shutdown of the internet and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality.”

Conclusion:

Maintenance of law and order is an important function of a government. There are legal provisions which empowers the Government to take steps and measures to ensure that public law and order is not disturbed and to prevent predictable danger and violence.

This power must be exercised with caution and care so that the rights of the citizens are not threatened and the exercise of fundamental rights in a democracy is not curbed. The Government must ensure that such restrictions are imposed only if it is necessary and crucial in the interests of the country.

Author: Tressa Maria Joseph from Symbiosis Law School, Hyderabad

Editor: Tamanna Gupta from RGNUL, Patiala.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s