Behind the great Indian Internet shutdown

Context:

In the Anuradha Bhasin vs Union of India case (2010), the Supreme Court of India held that access to information via the Internet is a fundamental right under the Indian Constitution.

In 2021, the year following the decision in 2020, India saw more instances of Internet shutdown that in 2020.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Fundamental Rights, Important Judgements), GS-II: Governance (Government Policies & Interventions, Issues arising out of the design and implementation of such policies)

Dimensions of the Article:

1. What are the rules regarding suspension of internet services in India and how have they been used recently?
2. What are the negative impacts of Internet shutdown?

1. About the SC judgement of 2020
2. India as the infamous as the Internet shutdown
3. Rationale of Internet Shutdown
4. Concerns regarding the Internet restrictions

What are the rules regarding suspension of internet services in India and how have they been used recently?

• The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 under the Indian Telegraph Act contains the procedure to restrict internet access.
• The Rules empowers the central and state governments to suspend internet services during public emergencies or for protecting the public interest.
• However, this provision has been frequently used in India. In the past 4 years, India has witnessed more than 400 internet shutdowns throughout the country. Which is the highest compared to any democracy in the world.
• For instance, after the abrogation of Article 370, J&K witnessed the longest Internet shutdown across the world.
• Most recently, Internet services were shut down in Delhi NCR following the violence that erupted during the Farmers protest on Republic day.
• Many civil society organizations including UN rights groups have termed these shutdowns a form of collective punishment for people, and an overreach of governments on citizens’ rights and liberties.

What are the negative impacts of Internet shutdown?

• Arbitrary internet shutdowns have many undetermined consequences. These consequences were particularly aggravated during the crisis of the Covid-19 pandemic.
• Lack of internet connectivity or digital illiteracy will force many citizens to be excluded from social and economic systems.
• It will cut off the most vulnerable i.e., the elderly, and pregnant women, from accessing vital digital health services, health and welfare alerts.
• It denies access to learning for students as most of the classes are shifting online to maintain physical distancing norms.
• Arbitrary internet shutdowns will cause large-scale disruptions in the economy – especially considering how many white-collar employment sectors, including IT, financial and consulting services, have resorted to working from home option.

About the SC judgement of 2020

• In Anuradha Bhasin vs Union of India case of 2020, the Supreme Court of India held that access to information via the Internet is a fundamental right under the Indian Constitution.
• It also ruled that any restriction on Internet access by the Government must be temporary, limited in scope, lawful, necessary and proportionate.
• The Court reiterated that the Government’s orders restricting Internet access are subject to review by Courts.
• Public emergency or a threat to public safety is the legislatively mandated prerequisites for restricting Internet access.
• Indian constitution makes the right to freedom of speech and expression a fundamental right for all citizens- listed in Article 19 (1)(a) of the Constitution. The Supreme Court has on many occasions expanded the scope of the right to freedom of speech and expression.
• The Supreme Court ruling is also in sync with the United Nations recommendation that every country should make access to Internet a fundamental right.
• A state cannot technically declare a service, facility or a kind protection as fundamental right as it requires interpretation of (by high courts and/or the Supreme Court) or amendment to the Constitution by Parliament.

Article 19. Protection of certain rights regarding freedom of speech etc.,

• Clause (1) All citizens shall have the right
  1. to freedom of speech and expression;
  2. to assemble peaceably and without arms;
  3. to form associations or unions;
  4. to move freely throughout the territory of India;
  5. to reside and settle in any part of the territory of India; and
  6. omitted
  7. to practise any profession, or to carry on any occupation, trade or business
• The State can enact laws that imposes reasonable restrictions on the exercise of the right in the Interests of:
  1. the sovereignty and integrity of India,
  2. the security of the State,
  3. friendly relations with foreign States,
  4. public order, decency or morality
  5. in relation to contempt of court, defamation or
  6. incitement to an offence

India as the infamous as the Internet shutdown

• India remains infamous as the Internet shutdown capital of the world.
• While the expectation was that this decision would limit the instances of Internet suspension to exceptional situations only, these promises have remained unfulfilled.
• The year following the decision, India saw more instances of Internet shutdown than the year preceding it.
• India’s Internet restrictions also accounted for more than 70% of the total loss to the global economy in 2020.

Recent restrictions

• The Government of the Union Territory of Jammu and Kashmir (J&K) has restricted access to mobile data in the Valley of Kashmir. It has also faced complete internet services shut down. Restrictions were issued in the wake of the death of hardline separatist leader Syed Ali Shah Geelani.
• Similar restrictions have been ordered by the government of Haryana in five different districts following farmers’ protests that were organised there.
• While in these instances, the governments have published the orders restricting access, such publication remains an exception and not the rule.
• In a few instances, the suspension orders have not been uploaded on the government’s websites.
• Compliance with the Anuradha Bhasin judgement remains low in other parts of India as well.

Rationale of Internet Shutdown

• Internet shutdowns are typically used when there is civil unrest, in order to block the flow of information about government actions or to end communication among activists and prevent the spread of rumours and fake news.
• Cutting off the Internet is both an early and preventive response to block restive groups to organise riots against the Government.
• The Internet cannot be independent of national sovereignty. Therefore, the necessary regulation of the internet is a reasonable choice of sovereign countries based on national interests.

Concerns regarding the Internet restrictions

• Publication of Internet suspension orders is important as those aggrieved with the restriction cannot approach a court of law to question an order’s legality in the absence of the order.
• Non-publication of orders also undermines public confidence in the Government. The Internet is a necessity in this day and age, and restrictions without publicly disclosed reasons create a trust deficit.
• The Union Government has not done enough to give statutory recognition to the directions in Anuradha Bhasin. In 2020, it amended the Telecom Suspension Rules 2017 to limit Internet suspension orders to a maximum of 15 days. However, the amendment did not include an obligation on the Government to publish orders nor did it include the Supreme Court’s direction to undertake periodic review of these orders.
• As a result, the governmental non-compliance with the law is difficult to comprehend.   
• If Supreme Court decisions are not statutorily recognised, the officials enforce the law incorrectly simply because of a lack of awareness. The experience with Section 66A of the Information Technology Act is a case in point. The State of Meghalaya in reply to an RTI application stated that it was not even aware of the judgment in Anuradha Bhasin.
• Internet suspension also remains a problem independent of non-compliance with the directions of the Supreme Court.
• In 2020, the Indian economy suffered losses to the tune of $2.8 billion due to 129 separate instances of Internet suspension, which affected 10.3 million individuals.
• Internet restrictions are often justified on the ground that they are limited to mobile data services. But, according to a 2019 Telecom Regulatory Authority of India (TRAI) report on Indian Telecom Services Performance Indicators, mobile device users (dongle and phone) constituted 97.02% of total Internet users. Only 3% of users have access to broadband Internet. It follows from this that Internet restrictions adversely affect those from lower socio-economic backgrounds more.

-Source: The Hindu