This Article has been authored by Harshitha Ulphas, a law student at Christ (Deemed) University.
India has been a witness to numerous internet shutdowns in the recent past, as imposed by the Government authorities on the pretext of maintaining public peace and harmony. Usually, access to the internet is blocked or deprived off, when there is a possibility of the same being used in situations as a means to spread fake information and rumors, which have the potential to disrupt social peace and security.
While blocking the internet is not against the law per se, the same becoming a practice is a concern amongst the legal fraternity especially, because of the statutory backing that has been relied on by the Government to impose these internet shutdowns.
This practice of shutting down the internet to prevent violence is a rather new approach to deal with conflict, especially in a democracy, because it has been hardly seen in the past. The same can be said because the internet has been blocked around 9 times, only in the time frame of 2013- 2015 across 4 states and 6 of these shutdowns were witnessed in the year 2015 itself.
While internet shutdowns are not completely illegal, it is interesting to note that the Government has backed these internet shutdowns with the Sec 144 of the Code of Criminal Procedure, 1973. This section empowers the District Magistrate and the Executive Magistrate to issue an order in urgent cases of nuisance or apprehended danger against any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management. These orders do require a notice, but in cases or emergency, these orders can also be passed ex- parte.
In today’s day and age, internet has become an essential. It is not merely a medium for communication, it has also evolved into becoming a platform for expression by the people who use it. Internet, in a way has actually provided representation to the minority or/ and less fortunate. It has also led to multi- directional flow of knowledge and has been inclusive towards contrasts and reciprocal enrichment. In fact, by acting as a catalyst, the internet has enabled individuals to exercise their freedom of speech and expression. The internet shutdown causes these events to cease, and even the UN Special Rapporteur on protection and promotion of the right to free speech has raised concerns over these arbitrary bans on the internet, as the shutdown leads to infringement of several fundamental human rights.
The author, through this articles seeks to understand the legality of these ban on the internet and the impact it has had on fundamental rights.
Special Law Governing the Internet
It is a settled principle in Jurisprudence, that the special law shall prevail over the general law, as the same has been reinstated many time by the Supreme Court. Also, the Code of Criminal Procedure in Section 5 i.e its Saving Clause states that-
“Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
Since the Code of Criminal Procedure is a code for general criminal law, whereas Information Technology Act is a special law that governs the Internet and deals with aspects like cyber security, online offences, etc. Therefore, in a situation where there is a conflict between general law and special law, the special law shall prevail. The Information Technology Act, 2000 specifies the same under Sec 81 of the Act, which is an overriding clause.
The provision for an internet shutdown can be seen under Sec 69A of the IT Act, 2000- deals with the “Power to issue directions for blocking for public access of any information through any computer resource.”
The section basically provides the government the power to block any information that is generated or transmitted on computer resource for reasons enlisted in the section. The Constitutionality of the section has been challenged and upheld in the Shreya Singhal Case.[i] Sec 69 can be applied in cases of emergency, and Sec 69A gives credibility to the former section, as the same has to follow a procedure before putting a ban on the internet and also has to meet certain conditions to ban the internet. Therefore, Sec 69 is more credible that Sec 144 of the CrPC in this regard. It is important to note here, that neither allow a blanket ban on the internet.
Problem with statutory backing under Sec 144 of CrPC
Preservation of public peace is the primary function of the Government, and the power under Sec 144 is conferred upon the executive to enable it to carry out that primary function. This is done because, in certain situations the it may become necessary for the Executive Magistrate to override private rights temporarily, which in usual situations are perfectly lawful. Sec 144 provides a wide power, which shall be exercised on in cases of urgency, the section is meant to provide only temporary relief in emergency situations. While the powers conferred under the section are wide, if an order infringes fundamental rights of the citizens, such an order shall be amenable to writ jurisdiction.[ii]
It has also been laid down that Sec 144 can be invoked only when there is a real threat, and the degree of threat involved to invoke the section must not be quandary, imaginary or a mere possibility but a real threat to public peace and tranquility.[iii]
However, it has been noticed that the internet shutdown is usually used as a pre- emptive method to curb the possibility of a public nuisance, completely disregarding the fact that not everything said on the internet can be or is capable of incitement. It is in fact, an illegal assumption of power to use such power to issue an order merely on the apprehension of danger of breach of peace.[iv]
Blanket ban and infringement of fundamental rights
The Supreme Court has emphasized on the importance of fundamental rights a number of times. Therefore, a complete ban on communication is violative of Art 19(2) of the Indian Constitution, thus, an order that infringes the same is also void under Art 13 of the Indian Constitution. The right to freedom of speech and expression in Art 19(1)(a) is said to include right to acquire and disseminate them, it also includes the right to communicate the same through any available media. It therefore also includes the freedom to hold an opinion.[v] With respect to Sec 144 of CrPC, the court has stated that the states must ensure that the restrictions imposed to restrict the above mentioned rights must be least invasive, and done only under the unavoidable circumstances.[vi]
Apart from Art 19(1)(a), the blanket ban on the internet is also violative of Art 19(1)(g). Internet is not only a means to communication in today’s day and age, but also has a vital role to play in businesses, education, markets, entertainment, etc. Unprecedented and arbitrary blanket bans on the internet have widely affected these functions adversely, and has caused direct violation of freedom to practice any profession or to carry out any trade, business or occupation.
It has also been laid down by the court that any restriction on trade, business or occupation, if arbitrary and drastic, and not in relation with the objective of law is unreasonable in nature.[vii]
Internet has become a vital in the present scenario, and plays a key role in various important aspects of one’s life in addition to providing a platform for expression of speech and expression. Therefore, an arbitrary dismissal of this service is not only abuse of certain powers granted by law to deal with cases of urgency, but also an infringement fundamental rights promised by the Indian Constitution, as already discussed.
The main concerns with respect to internet shutdowns as imposed by the government are as follows:
1· Application of the Code of Criminal Procedure which in this case is a general law, in presence of the Information Technology Act, 2000, which is a special law that deals with the internet and related issues. Therefore, imposition of internet shutdowns under Sec 144 of CrPC, when the essentials of the section are not met is incorrect in law.
2· Infringement of fundamental rights due to internet shutdowns as a pre- emptive measure to maintain public peace and tranquility.
It is important to understand here that internet shutdowns when allowed by the law, are not merely restrictive, but actually prohibitory in nature, and are allowed in cases of emergency and urgency only, and the courts have reiterated the need to do the same in the least invasive way possible. The problem therefore, is not the internet shutdown, but the same being used not as a last resort, but as a pre- emptive measure, when the threat is also a mere possibility and not a real threat.
Therefore, internet shutdowns should be kept under a check to ensure that it doesn’t become a frequent practice that leads to infringement of fundamental rights in a democracy.
[i] Shreya Singhal v. Union of India, (2015) 5 SCC 1. [ii] Ghulam Abbas v. State of U P, (1982) 1 SCC 71. [iii] Ramlila Maidan Incident In re, (2012) 5 SCC 1. [iv] Thakin Aung Bala v. D M, Rangoon, 1939 SCC OnLine Rang 39. [v] Union of India v. Assn for Democratic Reforms, (2002) 5 SCC 294. [vi] Ghulam Abbas v. State of U P, (1982) 1 SCC 71. [vii] Chintaman Rao v. State of M P, AIR 1951 SC 118.