[Legal Article] Legality of Internet Shutdown in India by Urvi Yadav [Intern Post]

Internet: Lifeline for people
Internet has become an indispensable part of people’s lives, providing them a platform to enjoy their freedom of speech and expression. However, recently this freedom has been heavily muffled by the Government in several parts of our country. 
The hour calls for realisation that the right to internet access is a fundamental right. In all spheres of life in India, it is integral and plays pivotal role. Internet has over arched other platforms to become the basic source of communication, information, and specifically an inevitable part of entertainment and social media. Our economy has seen a paradigm shift with the rapt grown usage of internet and technology. In India, it has become the major source of employment for many, working in the e-commerce industry such as Zomato, Flipkart, Nayka, Uber, Food Panda, etc. It is also a medium for education, drawing students from all parts of the globe together. It has a significant contribution in making education available for all, during the pandemic the online classroom and teaching platforms has worked as saviours to ensure that the learnings go on. It provides a myriad of opportunities at the click of a button, the vast body of knowledge and resources covering all facets and discipline makes it the most cherished mode of learning for all. Millions of commuters in urban and rural areas depend on the internet, online health care services, are also easily accessible. Business industry and occupation of small scale and self-owned entrepreneurs also depend on the internet for selling their products and services through online mode. Internet is a great boon for Home-based workers and women staff working from home for them.
What is meant by the internet shut down?
As and when access to internet and the related services are restricted by the governmental agencies, it is referred to as an Internet Shut Down. These restrictions may be limited to a certain place for a certain period of time or to a particular kind of transmission services. It can be extended by the government as per the requirement of the situation. It is also termed "Digital Curfew" or "Internet Kill Switch". 
Six types of internet shutdowns: -[1]
  1. National Internet shutdown- when the internet services are suspended within the whole country.
  2. Sub-national Internet Shutdown- when the internet services are suspended in a particular state or region.
  3. National Mobile Internet Shutdown- when the internet access is snapped on mobile phones across the nation.
  4. Sub-national Mobile Internet Shutdown- when the mobile internet services are suspended in a particular state or a region.
  5. National app/ Service Shutdown- when the usage of mobile application or any other mobile service is blocked throughout the country.
  6. Sub-national app/ Service Shutdown- when a mobile application or service is suspended in a particular state or region.
Through these internet suspensions by government not only inconvenience is caused to public and exercise of their individual rights are hampered but financial losses are also huge. Therefore, in view of these facts, legality of internet shutdowns and the laws providing safeguards of these orders needs to be analysed thoroughly.

In August last year, the government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, under the India Telegraph Act, 2017, which defines the procedure to put the limitations on internet access. Prior to the promulgation of the Temporary Suspension of Telecom Services Rules (hereinafter, the Suspension Rules), Internet shutdowns were ordered under two legislations, i.e., Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885 (ITA). Internet services suspension were ordered by district magistrates or police officials under section 144 of the CrPC, which gives district magistrate the authority to issue directions to maintain public order in areas falling under their jurisdiction. Section 144, which has gained notoriety for its indiscriminate use to suppress anti-CAA protests, gives wide discretionary power to the state to cease the civil liberties.
Procedure for Suspension
The competent authorities (Secretary to Home Ministry/ Home Department) has the power to issue a guideline for blanket ban on internet services under the Suspension rules. It also states that if the competent authority cannot be sought for prior directions such order maybe issued by an officer not below the rank of a Joint Secretary to the Union or State government. These rules confer powers to the central and the state governments to suspend internet services during “Public Emergences”. As per Rule 2 (1), the directions by the competent authority shall be made in accordance with procedure detailed therein. The suspension rules are superseding in operation, which means suspension orders under any other law including Section 144 of CrPC are illegal. However, neither in the parent Act nor in the Suspension Rules, the terms “public emergency” and “public safety”, the two grounds on which Internet shutdown can be ordered, have been defined. Except for a single committee, that includes members of the Executive, there is no independent and impartial body or committee to check the justness of the shutdown, making conflict of interest too apparent. The Rules, except for providing a flawed review committee whose scope is limited to decide the validity of the declaration, don’t envisage the procedure for lifting the blockade after any specific time.
On 4 August 2019, the central government commanded the suspension of internet services and telecommunication in Jammu and Kashmir. Suddenly, approx. a crore citizen was unable to practice their primary freedom of expression online. The suspension of the network infrastructure also leads to social and economic harm: students are unable to access critical educational resources, emergency services, hospitals face an administrative jeopardy and local business collapsed.
Scholar Jan Rydzak exhibited suspension of internet may not ensure public order and peace, as the government would readily claim. He argues that it is necessary to do a peaceful protest, and that internet suspensions may thus be provoking violent protests instead of resolving them.
On January 10, 2020 in final order, SC held basic constitutional principles and sets progressive precedent for future cases. The Judicature affirms that the constitution, by Article 19, safeguards the “freedom of speech and expression and freedom to practice any profession or any […] occupation over the medium of internet.” The court recognised that internet shutdowns can’t be forced or for unspecified period, it must be examined by the executive every week and that the orders are subject to judicial review. In that view, the SC may show way for strengthened challenges to internet shutdowns in future. The order quotes the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules issued in 2017 under the colonial-era Indian Telegraph Act. These regulations permit the Government to shutdown telecom and internet services but do not allow the government to issue orders. In section 69A, namely The Information Technology (IT) Act, allows central government and courts blocking of particular sites. The license agreements only allow the government to order the blocking certain online resources on the basis of national security. Thus, the order of a ‘whitelist’ of websites has no grounds in law as it turns the logic of only blocking websites on its head. The world is watching and history will not forgive those who forbade civil liberties through internet shutdown in the name of ‘public order and national security.’
As the total communication blackout in Jammu and Kashmir neared the end of its first week Anuradha Bhasin, the executive of The Kashmir Times. In her petition to Supreme Court wrote, that the shutdown was “Fuelling anxiety, panic, alarm, insecurity and fear among the residents of Kashmir”, and that it hindered freedom of press and with it, citizen’s Right to information.

The Case of Kerala
The High Court of Kerala held that “When the Human Rights Council of the UN have found that the right to access to Internet is a fundamental freedom and a tool to ensure the right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of the law.”[2] As the Kerala case notes, mobile and broadband Internet shutdowns affect women, girls and marginalised communities more than others.
The absence of high-speed of internet was pausing obstructions in the wake of Covid-19 pandemic, with patients, healthcare workers, doctors and common public were ignorant about the latest information, guidelines, advisories and restrictions related to the pandemic. The Jammu and Kashmir administration stated that it was a misconception because most of the information related to Covid-19 was easily available through fixed line high-speed internet available without any speed restrictions. It was easily available on various social media platforms on low speed 2G Internet.
On January 10, 2020, the SC held that, access to information and freedom of trade and commerce through the internet are fundamental rights under the constitution of India. It had ordered the central government and J&K administration to periodically examine the orders limiting internet services in J&K.

As protests on a debateable citizenship law began in India, authorities ordered shutting down internet in cities where demonstrators gathered to protest. These are the latest shutdowns which has witnessed largest number of internet suspensions in the world this year. Internet providers are given instructions by the authorities regarding the suspension of internet services stating public order circumstances. The internet was not only blocked in Assam but also in some districts of West Bengal and Aligarh. These shutdowns have at least been temporary.
Internet shutdown in some parts of Capital: New Delhi
New Delhi witnessed internet shutdown for the first-time internet services, voice and SMS services were blocked in some parts of the capital. Areas where people were protesting against the Citizenship Amendment Act and the related police violence were ongoing. Such as Mustafabad, Shaheen Bagh, Bawana, Seelampur, Mandi House, Jamia Nagar and Jafarabad, were imposed with Section 144 by the government. As a consequence of which the internet services, phone calls, SMS; were blocked in some parts of the capital.
Internet Shutdown Vs. International Human Rights Law
Despite the worst consequences of internet shutdowns on freedom of expression and economy governments use these strategies in highest amount. The Indian government abrogated Article 370 and the state of J&K got autonomy from central government. After which internet shutdown was imposed. It had left widespread impact on the state pharmacies as they had low supplies, trade and business were crumbled and people disconnected. It was virtually difficult for the print media and the journalists to function. Thus, these shutdowns curtail the basic human rights of freedom of expression and write to information. Freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the United Nations in 1966 including India. The article states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive or impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”  It is, however, conditional and may be limited “for the respect of the rights and reputations of others,” as well as “the protection of national security or of public order.”
The U.N. Human Rights Council (HRC) maintained that “the same human rights that people have offline must protected online.” It also said that internet shutdowns “are always a disproportionate restriction on the right to freedom of expression and have serious repercussions for the protections of other human rights.” Four U.N. special rapporteurs condemned the restrictions in Jammu and Kashmir.
Impact of internet shutdown on social and economic costs
Internet shutdowns not only affect the fundamental liberties and rights but they have severe impact on industry and working individuals they lose out on sales and jobs it is also doubted that these shutdowns achieve the stated aims of maintaining law and order. People rely on internet for communication purpose with near and dear ones, information, share news, etc.
Hence, internet shutdowns not only curtail civil liberties but they provide extra control over the communication of information. Regular and unsystematic shutdowns may have drastic effects on freedom of speech in future.
Access to Internet is a Fundamental Right: Supreme Court
The access to internet is a right that implied runs in our fundamental rights and freedoms i.e., freedom of trade and expression, freedom of peaceful assembly, freedom of speech and expression and the right to life under Article 21 which includes within its ambit the right to education, health, the right to livelihood, the right to dignity and the right to privacy.[3]
Access to internet is a fundamental right under the Article 19 of the constitution, and can be limited in unforeseen conditions and also affirmed that freedom of press is precious and a pious right.[4]

Before suspension of internet, it is necessary to analyse the proportionality and necessity required, in the wake of prevailing situations at hand. The search for alternative must be made and a comparison in reference to the goals and the objectives of various measures must be drawn to reach an appropriate solution. Hence, it is essential to adopt such measures which will provide minimum short term social and economic costs incurred. In democracy governments are accountable to public and they should give rational for suspension of internet services to maintain transparency and release the documents for public scrutiny. Unsystematic internet suspension is not beneficial in the interest of safeguarding public order in today’s scenario. Shutdowns are ineffective and have been criticized by people as a clampdown on free speech and a “regressive” leadership whose reaction at the first site of turbulence is to suspend the internet.
The governments continue to claim that these measures are indeed essential and proportionate in wake of public security and national security concerns as justifications.

The author of the post, Ms. Urvi Yadav is a Law Student from Maharishi Law School, Maharishi University of Information Technology, Noida & was an intern at MyLawman. She can be reached at urviyadav29[at]gmail[dot]com. 
This article has been reviewed and edited by Samreen Ahmed, Research Assistant, Research & Innovation Department (ARIL), MyLawman.

[1] According to report of Centre for Internet & Society, Bangalore (2016)
[2] Refer, Faheema Shirin R.K. v. State of Kerala &Ors.
[3] Refer, Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors. WP (civil) no. 494 of 2012

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