RAMPANT INTERNET SHUTDOWNS IN INDIA: LACK OF TOOLS TO ASSESS IMPACT AND FUNDAMENTAL RIGHT VIOLATIONS

by Ishita Chandra

Image source: Catch News

Maktoobmedia.com

WHY IN NEWS

In March 2023, the Punjab government began an operation to capture pro-Khalistani preacher Amritpal Singh, and as part of that operation, mobile Internet and SMS services in the State were shut down for more than four days. This was done “in the interest of public safety, to prevent incitement of violence, and disturbance of peace and public order”. Punjab has experienced eight such shut-downs, according to the Software Freedom Law Centre (SFLC), which maintains track of Internet termination by State.

Access Now, a non-profit organization dedicated to safeguarding digital rights, reported that India was responsible for 60% of global internet shutdowns between 2016 to 2022. Nonetheless, the Indian Central government does not collect data on internet shutdowns that are ordered by State governments. In its report on the “Suspension of telecom/Internet services and its impact”, the Parliamentary Standing Committee on Communications and Information Technology suggested the need to compile such information. Each time the Internet was shut down, the Committee intended the causes, duration of the outage, the appropriate authority’s ruling, and the decision of the review committees to be recorded and made public. The deployment of Internet shutdowns as an alternative for implementing law and order was strongly condemned.

PROVISIONS IN THE INDIAN CONSTITUTION, 1950

The Indian Constitution’s Article 19(1) grants its people certain freedoms. There is freedom of speech and expression to every Indian citizen, including the freedom to voice one’s thoughts via any form of public discourse or visual representation. Every citizen of India is also entitled to freedom of speech and expression under Article 19(1)(a). This also involves expressing one’s opinions online. Article 21A of the Indian Constitution guarantees the Right to Education, which mandates compulsory education for every Indian child under the age of 14. Internet access has become indispensable to attain advanced educational objectives in contemporary times. However, education, particularly online classes and webinars, is vulnerable to the impact of internet shutdowns. Additionally, Article 21 of the Constitution recognizes the Right to Life and Personal Liberty, which encompasses the Right to Internet Access. Access to the internet for educational purposes, businesses, trade, and personal development is linked to personal liberty. Access to quality internet and the dissemination of information can also foster the empowerment of individuals.

GUIDELINES BY THE INDIAN COURTS

The Supreme Court of India has laid down guidelines stating that internet restrictions must comply with the proportionality test and should not exceed the necessary duration. The court has also recognized that the constitutional protection under Article 19(1) extends to freedom of speech and expression, as well as the freedom to carry on any profession, trade or business through the internet medium. Additionally, the court has stated that any limitations on internet usage must conform to the principles of proportionality under Article 19(2). This decision is based on the Kerala high court’s ruling in the Faheema Shirin v. State of Kerala case, which established that the right to internet access is a fundamental right and a component of the right to privacy and education under Article 21 of the Constitution. The court has also emphasized the need for a systematic process to lift any internet suspension.

IMPACTS OF INTERNET SHUTDOWNS AND WAY FORWARD

Internet Shutdowns have negative real-world impacts on people’s livelihoods and human rights. According to a report issued by the UN High Commissioner for Human Rights last year, connectivity limitations in Kashmir have long undermined students’ entitlement to quality education, especially those relying on remote education. According to a 2018 study by the Indian Council for Research on International Economic Relations, shutdowns cost India around $3 billion between 2012 and 2017. Such shutdowns cause major communication channels or entire communication networks to slow down or get blocked, thereby leaving “thousands or even millions of people with no way to reach loved ones, continue their work, or participate in political debates and decisions”.

The Indian government utilizesSection 144 of the Code of Criminal Procedure and Section 5(2) of the Telegraph Act to impose internet shutdowns, which have been accused of violating human rights. Shutdowns are also reportedly caused by government security activities, causing significant limitations on individuals’ rights. In cases where authorities admit to ordering shutdowns, they often cite public safety concerns, preventing the spread of discrimination, violence, or incitement, or combatting misinformation. However, numerous reports indicate that shutdowns often have the opposite effect, causing increased anxiety and uncertainty and escalating the probability of conflict and division. Internet disruptions affect businesses, commerce, and industries, among other areas, and have a significant financial impact on all industries. They cause long-lasting economic shocks that significantly exacerbate pre-existing social and economic inequality. Michelle Bachelet, the UN High Commissioner for Human Rights, stated that when a government blocks access to the internet, both people and economies suffer. The costs to employment, education, health, and political engagement much outweigh any anticipated benefits.

Lawyers, journalists, activists, and civil society members have been greatly affected by shutdowns as they lack the resources to carry out their professional duties. The absence of the internet has prevented lawyers from conducting legal research for their clients, while judges have been unable to access court information systems. Journalists and other members of society have been unable to report on any human rights violations during protests. Given that India is the largest democracy in the world, it is vital for the government to reform regulations concerning shutdowns, allowing for increased judicial scrutiny of the process, in order to reduce their occurrence.

If appropriate action is not taken soon, future governments could potentially use shutdowns as a means to suppress opposition, subvert the rule of law, and violate the constitutional rights of individuals. To end the continued and heartless violations of free speech and expression on the internet, the judiciary must examine cases of internet shutdowns by the state or union governments using stricter guidelines than those set out in the Anuradha Bhasin case, which recognized the fundamental right to access information under Article 19(1)(a) of the Indian Constitution. This case also emphasized the fundamental rights guaranteed under Article 19(1)(g) of the Indian Constitution, which grants individuals the freedom to engage in business, trade, or profession on the internet. These rights can only be restricted when it is necessary to protect state sovereignty, national security, international relations, public order, or to prevent incitement to commit a crime. It is now critical to recognize the fundamental right to access the internet and combat unreasonable restrictions that serve political objectives at the expense of citizens’ civil liberties.

A temporary suspension of the internet is not a solution; rather, it is an excessively harsh punishment that infringes citizen’s fundamental rights. It is unacceptable in the 21st– century  and the only way to ensure universal internet access and sustain and strengthen the biggest democracy in the world is to lay down specific guidelines and procedures illustrating when and how to impose internet shutdowns while also increasing transparency of the same.