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The rise in internet shutdowns: To what extent it is justified

Jan. 22, 2020   •   Madhav Gawri

Internet shutdown is intentional suspension of internet services either by central government or state governments. In recent years the country has witnessed a widespread protest over various issues, which led to several internet shutdowns by the government across the country. In the modern world where the internet has become an essential part of a day to day life, restrictions on it causes a lot of disruptions to people. It is vital to note that the right to access internet has been observed as a fundamental right by Kerala High Court.

Relevant Law

Till 2017 there were no specific guidelines to govern internet shutdowns & the same were ordered under Section 144 of the Code of Criminal Procedure for the sake of public safety & public tranquility.

Then in 2017, in the exercise of the power conferred under Section 7 of the Indian Telegraph Act, 1885, a legal framework for regulating internet shutdowns was created by enacting Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter referred as the Rules).

Conditions under which internet shutdowns can be ordered

Unfortunately, the suspension rules don't provide for any specific grounds on which internet services can be restricted. It uses mere words, ‘public emergency & public safety’ which haven't been defined. And this lacuna provides the government with lot of discretion.

Authorities empowered to order the internet suspension:

Rule 2(1) of the suspension rules enables the Secretary of the Ministry of Home Affairs (in case of Central Government) & the Secretary of the Home Department (in case of State Government).

Further this provision provides that in case of unavoidable circumstances (where obtaining of prior directions aren’t feasible), then such order may be made by an authorised officer of the rank, Joint secretary or above.

It is to be noted that this provision is drafted in the negative language & uses the words 'shall not' which implies that it should be construed strictly & no officer other than the mentioned above can make the relevant order.

Safeguards provided by the Act (if any)

Review of the Order

Rule 2(2) of the Rules provides that every such order shall have reasons for the direction.

A Review Committee is also to be constituted by the central government or the state government as the case may be. A copy of the order shall be sent to this review committee on the next working day.

Timeline

No timeline has been provided by the rules with regard to the continuation of such suspensions. Government has unlimited powers to extend the time limit & this creates a lot scope for the misuse.

Judicial Trends

In a recent judgment[1], the Gauhati High Court has ordered the state government to restore the internet services which were suspended because of CAA protests. Court held that "the shutdown of mobile internet service virtually amounts to bringing life to a grinding halt".

Allahabad High Court has taken suo moto action with regard to the internet shutdowns by state authorities in Uttar Pradesh. It was pointed out that not only the judicial functioning but also the educational activities, banking activities, therapeutic activities, Airways etc. are dependent on internet in the modern world. And in the absence of internet smooth functioning of all such day to day life is adversely affected.

In a recent judgment[2] the Supreme Court has declared that freedom to practice any profession or to carry on any business through internet are very well covered within the freedom of speech & expression under Articles 19 (1) (a) & 19 (1) (g).

Court has stated that the advancements in the field of technology can't remain unrecognized & in fact it is inevitable. Importance of the internet can't be neglected as in the modern world from morning to evening we are dependent on it. The Internet is an essential tool for trade & commerce.

Court has also clarified that prerequisites for imposing shutdowns are of ‘public emergency’ or ‘interest of public safety’.

It has also been held that under Rule 2(2) of suspension Rules, the reasoning of the office should not only indicate the necessity for such measures but also the unavoidable circumstances which led to it.

Court has also declared that suspension for an indefinite period isn't permissible & its periodic review within seven working days has to be done by Review Committee, constituted under Rule 2(5).

Conclusion

It is clear from the points discussed above that the provisions of the rules does not provide adequate safeguards to protect the right to access the internet. There shall be a maximum time limit as well as the specific circumstances under which internet services can be suspended.

In the modern world, the internet plays an important role & it has become a significant part of our day to day life. Even it has been declared as a Fundamental Right & is ancillary to right to free speech & expression.

It cannot be denied that there are circumstances when it is vital to administer the suspension of the internet services but that shall be rarest of the rare phenomenon. Public order is always at the top priority but the government should not interfere with such fundamental rights of the citizens without proper & necessary reasons. As in the present day, each & every activity of life is dependent on the internet services, and administration should come up with alternative techniques to maintain the law & order situations.

We are a democratic country & thus, the government cannot suspend the rights arbitrarily. The law relating to the issue shall be reconsidered by the government & necessary amendments shall be made to it.

[ Author Amit Kumar Verma is a 4th-year student of NLIU, Bhopal]

[1] PIL 78/2019

[2] Anuradha Bhasin v Union of India & Ghulam Nabi Azad v Union of India Case No : WP(c) 1031/19, 1164/19


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