Over the past few years, the Indian government has increasingly been trying to control law and order by shutting access to the internet, whether in Jammu and Kashmir (J&K), Manipur or Punjab. Between 2016 and 2022, 60% of Internet shutdowns across the World took place in India; in fact India has more internet shutdowns than any other country in the world. Should shutdowns be used to maintain public order? Since 2012, the number of shutdowns in India recorded by The Internet Shutdowns Tracker maintained by the Software Freedom Law Center stands at 738. There are many reasons why internet shutdowns are imposed. For around 40-50% of them, the official reason is communal tensions. Some of them are imposed during protest, many to prevent cheating during exams, and many due to religious processions. Preventive shutdowns are imposed before an event takes place and a reactive shutdown is imposed after an event takes place and is generally the easiest way to control in escalating law and order situation. There were almost 84 shutdowns in 2022 in India. While a lot of shutdowns are necessary to prevent communal tensions, civil war or riots and situations of unrest, they need to be proportionate.
Article 19 of the Indian Constitution mentions freedom of speech and freedom to practice any profession. Article 21 protects the right to life and liberty, which also encompasses the right to education and the right to exercise one’s freedom to access the Internet. The Supreme Court has held in various decisions, including in AnuradhaBashin and Faheema Shirin, that access to the internet has to be preserved. Shutdowns should be exercised only in situations which require exceptional control and surveillance. The court has said a shutdown needs to be temporary, limited in scope, lawful and proportionate. Article 92 says that reasonable restriction might to be imposed wherever necessary. The grounds includea threat to the nation, to national sovereignty, integrity and defence or to avoid incitement to or commission of a cognizable offence. Proportionality means you cannot shutdown the internet to prevent cheating in exams. You can’t solve societal problem by plucking the lowest hanging fruit. Though the freedom of speech and expression is not an absolute right but shutdown cannot happen for frivolous reasons.
The Information Technology Act, 2000 maintains that threats to national sovereignty or integrity or defence call for website blocking. Accordingly, we have rules setting our safeguards for website blocking. Then there the Temporary Suspension of Telecom Services as per (Public Emergency or Public Safety) Rules 2017. Shutdown for preventing cheating in exams should not be a ground. Proportionality has to be looked into-whether a shutdown is necessary or not. These are pertinent questions for courts to decide. A balancing of the scales should be dexterously done, because situations can vary. A general protocol or benchmark may not work for a particular situation. That’s why the Home Secretary has the power to decide on shutdowns and the review takes place in a committee. And any challenge is decided by the appropriate court. There needs to be more transparency and clarity on the protocols and their interpretation which can come clearly through case law as well.
As a citizen of this country, I oppose shutdown of any kind, whether a social media blockade or a complete blockade because a lot of these decisions are not made following due process. Notably below the level of a joint secretary can impose a shutdown. But then, district magistrate end up imposing blanket shutdowns. To impose an internet shutdown is to essentially curb a fundamental right. People can’t work, access telemedicine, study or even eat, since so many of our delivery services need the internet and OTP (One-time password). When there’s so much at stake, you ought to be extremely careful while imposing an internet shutdown. Rule 5 of the Temporary Suspension says that a review committee has to be formed within five working days (of issue of directions for suspension of services). Often when you try to get orders to understand how the review committee is working and whether there are minutes of the meeting, these applications are denied. This means we don’’ know if the review committee met and if the shutdown is justified. Acceding to the Anuradha Basinjudgment, if you’re cutting off somebody’s Internet, you have to at least inform them. Often there is no public information about a shutdown. After this judgment, thankfully shutdown have only started occurring under the Suspension Rules as opposed to section 144, which is a good thing, but there are a lot of guidelines that are not adhered to. For example, there are none or very few publications of shutdown orders in public. In J & K, the government said in January 2020 that it would whitelists some websites and allows access to them through 2G. This was an impractical solution, because half the websites don’t load on 2G. And if there are whitelisted websites, it’s a problem. A bank’s websites could be whitelisted, but if you try to access your account information and that is hosted on a different domain, you cannot. Since May 3rd there’s prolong Internet shutdown as a result of present turmoil in Manipur. The Manipur High Court constituted a committee to look into the possibility of blocking VPN servers so that the internet access can be restored safely while restrictions on social media websites are still maintained. This is not a feasible solution because VPN provide access. In any case, social medias also an important part of the freedom of profession and of the freedom of speech and expression.
When a shutdown is in place for long time then the government has to protect people. Such a dire step (shutdown) needs to be taken only if it is really called for. On the other hand there are certain services for which we heavily rely on the Internet. A lot of businesses and livelihoods depend on the Internet today. Therefore, there needs to some solution for each situations. For example, there could be certain services to which we continue to have access if possible. Certain websites could be blocked instead of a complete shutdown. And healthcare or education services could remain accessible. VPNs could be blocked. People use VPNs freely today and that also is a facet of your right to privacy. The impact of shutdowns is under studied. If we start reading about the impact of shutdowns, we would not impose them. Sometimes, people even lose out on scholarships or years of study due to shutdowns. This is exactly happening at present in Manipur. India is a largely informal economy, so it’s hard to calculate the exact economic cost of a shutdown. But if we paid attention to the impact we would look for alternatives to shut down. It’s about time that we do.
(Writer can be reached at:sjugeshwor7@gmail.com)