THE ECLIPSE OF DIGITAL DEMOCRACY: RECRUDESCENCE OF INTERNET SHUTDOWNS IN INDIA

Source : New Indian Express

This article has been authored by Indraneel Chakraborty, a third-year student at School of Law, University of Petroleum & Energy Studies (UPES).

Abstract

India is home to the world’s largest democracy: a nation with 1.3 billion people. While countries across the globe should have followed Uncle Ben’s[1] advice when he said, “With great power comes great responsibility”, it looks like our nation is following a counter-intuitive approach to his wise words. If you are surviving in this sky-soaring competitive world, there is a high likelihood that you have an active Internet connection. There are also fair reasons to believe that you might be using the Internet for other things too, either it is for educational, vocational, recreational, or entertainment purposes. Whatever your reason might be, what if I tell you that right from this very moment, all Internet services in your city are being suspended? What if I tell you that you won’t ever know that when will the Internet access be reinstated, or even if they will be reinstated at all? Worst, what would you do if it happened to you in this Coronavirus pandemic-stricken era when the entire world is dependent on the Internet for nearly everything?

If any of those aforementioned statements intimidate you or makes you question the authority with which I’ve written them, then I’m glad to draw your attention towards this constantly recurring real-world phenomenon in the world’s Internet Shutdown capital: India! Albeit a lot of Indian netizens have been fortunate enough to have not encountered an Internet Shutdown firsthand, it does not undermine the ‘bawls’ and ‘bellows’ of those unfortunate citizens who had to live through one.

The ensuing article explores the jurisprudential legitimacy as well as pragmatic ramifications of enforcing Internet Shutdowns in a democracy and aims to impart critical insights as to why we should imperatively raise our voices against such vicious practices…before we are victimized of an Internet Shutdown ourselves.

Introduction

‘Internet Shutdowns’, ‘Internet Kill Switches’, or ‘Digital Curfews’, all these are homonyms of the same tyranny. An Internet shutdown is an absolute restriction where the government imposes a total constraint on accessing any form of Internet services by the general public. These shutdowns might be imposed as per the geographical or jurisdictional requisites or as pleased by the Government for a limited period. In extraordinary circumstances, the transmission services could be ceased for an indefinite period. In India, there have been six identified categories of Internet shutdowns reported[2]:

(i) National Internet Shutdown – Internet services restricted across the nation

(ii) Sub-National Internet Shutdown – Internet services concerning a specific region or state restricted

(iii) National Mobile Internet Shutdown – Internet access on mobile devices restricted across the nation

(iv) Sub-National Mobile Internet Shutdown – Internet services on mobile devices restricted concerning a specific region/state

(v) National App/Service Shutdown – Access to a particular mobile application or service restricted nationwide viz. SMS, Premium services, etc.

(vi) Sub-National App/Service Shutdown – Mobile applications/services restricted in a specific state/region

Backdrop of Internet Shutdowns in India:

India has rightly been addressed as the “Internet Shutdown Capital of the World”[3]. In light of the statistics of the Internet Shutdown Tracker, an online portal designated to track and report such incidents; it is estimated that India witnessed as many as 93 Internet shutdowns in 2019 alone and over 130 shutdowns in 2018[4].

India encountered 6 Internet shutdowns in 2014 which steeped to 14 in 2015. In the year 2016, the count further escalated to 31. By 2017, the count reached 79, and Internet shutdowns were at their pinnacle in the year 2018 with a count of 134. According to the data collected by the Shutdown Tracker Optimization Project by accessnow.com, an open-sourced website oriented towards Internet activism, 67% of Internet shutdowns across the world in 2018 were imposed in India.[5]

Kashmir in particular, aces the chart accounting for more than 56% of the total Internet shutdowns in the nation.[6]Ever since the Presidential Order of August 5, 2019, bifurcated the autonomy of Jammu & Kashmir by scrapping Article 370,[7] the Internet services in Kashmir have been erstwhile terminated due to militancy-related concerns.

Evaluating the Legal Framework of Internet Shutdowns.

Despite the substantial inclination in Internet shutdown reports, guidelines regulating them were postulated only three years ago. Before 2017, Internet shutdowns were imposed only by the District Magistrates by the power conferred upon them under Section 144 of the Code of Criminal Procedure, 1973.[8] This provision empowered the District Magistrates to issue parameters aimed at maintaining public order in regions under their jurisdiction.

The Government validated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules[9] under the Indian Telegraph Act, 1885[10] in 2017 through which it derives the power to enforce an Internet Shutdown.

The Procedure Established by the Suspension Rules:

The Suspension Rules enacted by the Government confers the authority to impose orders regulating Internet shutdowns on the Secretary to Home Ministry/Home Department. The rules also provide that in case the prior approval of the competent authorities cannot be sought, then such orders might be issued by an officer (not below the designation of Joint Secretary to the Union/State Government) authorized by the respective secretary in cognizance of the situation.[11] However, in such circumstances, the joint secretary is mandated to seek prior confirmation of the suspension order no later than 24 hours since the enforcement of the shutdown. The competent authorities are thereby sanctioned to execute a blanket prohibition on Internet/telecom services.

These rules empower the Central as well as State Governments to sojourn Internet services during “public emergencies”.[12] The directives concerning the suspension of internet or other telecommunication services must be undertaken by competent authorities and they shall be synchronous with the procedure established in the aforesaid rules.[13] The Suspension Rules supersede any other former legislation, i.e. suspension orders under any other statute (inclusive of Section 144 of Code of Criminal Procedure) are now rendered void ab initio. A remarkable contention here is that the terms ‘public emergency’ and ‘public safety’, the two fundamental requisites for possible imposition of an Internet shutdown; are neither defined explicitly in the Suspension Rules and nor in the parent statute. Besides one single committee[14] (comprising of members of the Executive), there is no substitutional independent body to regulate the integrity of the Internet shutdown which visibly elevates the conflict of interests. The Suspension Rules barely enshrine any stringent framework for envisioning the procedure for revoking such restrictions after the specified period. Hence, the only conceivable role of these rules seems to provide for a blemished review committee whose scope is restricted only to limit the validity of the declaration.

It must be noted that police officials have no authority to order such shutdowns and they are excluded from the purview of ‘competent authorities’ from the perspective of the Suspension Rules. The purpose of secluding police officials from this special status was to ensure a system of ‘checks and balances’ in the society as well as to prevent any conflicting interests or potential episodes of exploitation of official authority. Therefore, any such directions issued by police in contravention of the rules shall be ultra vires.

The Test for Constitutional Congruency:

The origin of Internet shutdowns is instilled within the ambit of the Telegraph Act,[15] which enumerates the circumstances under which the telecommunication services can be subjected to prohibition. Some of these grounds include (but are not limited to) the security of the state, maintaining public order, international relations with foreign states, preventive measures against incitement to the commission of potential offences, the sovereignty, and integrity of the nation, etc. These grounds are analogous to the grounds in the Constitution of India which catalogs reasonable restrictions against exploitation of the freedom of speech and expression.[16] Therefore, from the standpoint of such justifiable reasonable restrictions, the legitimacy of Internet shutdowns, as well as curtailment of telecommunication services appears to be a paradox and cannot be overtly challenged. Nevertheless, there is substantial room to improve the statutory framework concerning Internet shutdowns and the legislation shall foresee a right-oriented modus operandi to eradicate any pre-existing ambiguous lacunas. After all, any Internet shutdown which is enforced improperly or without a justifiable backdrop is nothing but a vicious atrocity on citizens and a straitjacket mockery of our basic human rights.

The Judicial Horizon:

On the 10th of January, 2020, in the case of Anuradha Bhasin v. Union of India & Ors.,[17] the Supreme Court of India acknowledged that Freedom of Speech & Expression and Freedom to Practice any Desirous Profession via the agency of the Internet relishes constitutional sanction under Article 19(1)(a) and Article 19(1)(g).[18] In this case, the Court inter alia, held that:

(i) The Freedom of Speech & Expression as well as the Freedom to Practice any Profession (online) was duly recognized by virtue of the Indian Constitution.

(ii) Albeit the Government could lawfully terminate Internet access, it failed to legally sustain the pretexts behind imposing such shutdowns. Moreover, since most Internet shutdowns were imposed without any temporal limits, the Government was coerced to review its suspension orders and lift those which were unessential or imposed without a pre-specified temporal limit.

(iii) The suspension of telecommunication/Internet services under Section 144 – CrPC cannot be exercised to subdue legitimate expression and such restrictions are righteously subjected to judicial scrutiny.

This decision was celebrated across the nation by netizens hauling it as a landmark victory for Freedom of Speech & Expression. However, it was just the tip of the iceberg. The judgement was erroneously testified as upholding the right to Internet access as a fundamental right.[19] It merely carried a ray of hope and no definite resolutions. The Apex Court solely focused on the context of case laws that laid the foundation for upholding fundamental rights vis-à-vismedium of the Internet and consciously overlooked to declare the right to Internet access as a fundamental right[20]stating that the Petitioners did not contend it. Again, the judgement faltered in evaluating what specific period of time might be considered ‘transient’.

The Pitfalls of Enforcing Internet Shutdowns in the World's Largest Democracy.

The Aftermath of Human Rights:

Internet shutdowns are being exploited as an instrument to constrict the smooth and legitimate functioning of India as a democracy and such shutdowns are often vulnerable to be imposed strategically. In light of similar incidents across the world, the United Nations Human Rights Council (UNHRC) passed a resolution[21] on the 1st of July, 2016 scrutinizing telecommunication disruptions and advised all member nations to cease curbing digital access and dissemination of information. The resolution, thus, reaffirmed that the right to Freedom of Speech and Expression is universally applicable, even in the online realm.

Impact on Economy and Industries:

A report by the Brookings Institute[22] which aimed to evaluate the losses incurred by distinct nations due to Internet shutdowns adjudicated India to have aced the list by inflicting losses at par with US $968 million in the year 2016. With more businesses and start-up ventures adopting digitized business models, an Internet shutdown for even 24 hours has the potential to cripple the communication channels and disrupt payment gateway operators, thereby resulting in a fiscal fiasco.

The report by the Indian Council for Research on International Economic Relations[23] quantitatively calculated the economic influence of Internet shutdowns across the nation and evaluated an estimated loss equivalent to US $3.04 billion in only six years (2012-2017).

Consequences on Health and Psychology:

Today, the Internet is an indispensable element in the health care fraternity. A lot of vital data such as patient detail repositories, documents, health records, etc. are stored on online servers. When Internet access is restricted, it becomes unfeasible to fetch crucial data from the online servers, and the hospitals/healthcare institutions are forced to improvise with new contingency measures. Due to the Government’s ignorance, the lives of thousands of critical patients might be at stake and such repercussions might be catastrophic.

Moreover, when Internet services are stopped at once, it impacts the psychology and mental health of innumerous individuals since so many key aspects of our lives are reliant on it.

Tampering of Avenues for Learning:

The Internet is way bigger than social media or online shopping websites. Shutting down the Internet means restricting access to knowledge and learning opportunities for students, learners, academicians, adults, etc. pursuing online courses on a plethora of virtual platforms such as edX, Udemy, Coursera, Unacademy, etc. Such shutdowns are no less than committing a ruthless felony with their promising futures and career objectives.

Concluding Remarks

If we are fortunate enough to have never encountered an Internet shutdown ourselves, it does not justify the action of disregarding the fact that millions of citizens have to fall victims of such incidents every year in India due to the overexploitation of exercising Internet Shutdowns in the name of curbing commotion and securing the internal peace and tranquility of the nation. If we try visualizing our lives one day without the Internet in this pandemic due to the courtesy of the Novel Coronavirus, we can effortlessly comprehend that it’s not only tormenting but acutely frightful as well.

If we consciously strive to reckon the helplessness of losing Internet access unexpectedly, with no information on when will the access be reinstated, only then we can understand the plight of the citizens who have to face such draconian mayhems by the Government. Curtailing Internet access is an indirect violation of elementary human rights such as the right to free speech, health, communication, and education. We shall hope for the government to realize the vices of such shutdowns in due time and they must stop lending a deaf ear to the hues and cries of the netizens of our nation. On an individual paradigm, all of us can extend our support to those who are continually victimized by such shutdowns by using ‘#LetTheNetWork’, ‘#KeepItOn’ (hashtags) on our social media profiles. A democracy devoid of a platform to express our unbiased opinions is authoritarianism in disguise.

To sum up in the fitting words of William E. Gladstone, “Justice delayed is justice denied.”

[1] Reference from the Original Motion Picture: Spiderman (2002). [2] Japeet Grewal, Internet Shutdowns in 2016, THE CENTRE FOR INTERNET & SOCIETY (last visited on Jun. 18, 2020, 10:34 PM), https://cis-india.org/internet-governance/files/internet-shutdowns. [3] Asmita Bakshi, India is the Internet Capital Shutdown of the World, LIVEMINT (Dec. 08, 2019, 05:22 PM), https://www.livemint.com/mint-lounge/features/inside-the-internet-shutdown-capital-of-the-world-11575644823381.html. [4] Shadab Nazmi, Why India Shuts Down the Internet More Than Any Other Democracy, BBC (Dec. 19, 2019), https://www.bbc.com/news/world-asia-india-50819905. [5] Nikhil Rampal, More than 350 Internet Shutdowns in India since 2014, INDIA TODAY (Dec. 18, 2019, 01:09 PM), https://www.indiatoday.in/diu/story/more-than-350-internet-shutdowns-in-india-since-2014-1629203-2019-12-18. [6] Id. [7] INDIA CONST. art. 370. [8] The Code of Criminal Procedure, 1973, § 144. [9] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, Ministry of Communications, Government of India. [10] The Indian Telegraph Act, 1885, No. 13, Acts of Parliament, 1885 (India). [11] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, § 2, cl. 1. [12] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, Rule 1, sub-rule (1). [13] Id. at § 2, cl. 1. [14] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, Rule 2, sub-rule (2). [15] The Indian Telegraph Act, 1885, § 5, cl. 2. [16] INDIA CONST. art. 19. [17] (2020), W.P. (Civil) No. 1031/2019 {SC}. [18] Id. [19] Zaid Drabu & Aiman Hashmi, SC Judgment on Kashmir’s Internet Shutdown Ignores Both Rights and Remedies, THE WIRE (Feb. 13, 2020), https://thewire.in/law/sc-internet-shutdown-judgement. [20] Id. [21] U.N. Passes Landmark Resolution Condemning Internet Shutdowns, ACCESS NOW (Jul. 01, 2016, 04:48 AM), https://www.accessnow.org/un-passes-resolution-condemning-internet-shutdowns/. [22] Darrell M. West, Internet Shutdowns Cost Countries $2.4 Billion Last Year, CENTER FOR TECHNOLOGY INNOVATION AT BROOKINGS (Oct., 2016), https://www.brookings.edu/wp-content/uploads/2016/10/intenet-shutdowns-v-3.pdf. [23] Rajat Kathuria et al., The Anatomy of an Internet Blackout, INDIAN COUNCIL FOR RESEARCH ON INTERNATIONAL ECONOMIC RELATIONS (Apr. 25, 2018), http://icrier.org/pdf/Anatomy_of_an_Internet_Blackout_ppt.pdf.