This article is authored by Shreyansh Rathi, a first year student at RGNUL, Patiala
Internet- one of the most integral parts of daily life of an average individual in 21st Century- has become an important place and means of exercise of freedom and expression of an individual. It provides a great and highly accessible platform for the exchange of ideas as well as knowledge throughout the world without the constraints of time and place. It has become such a necessity that it is recognised as a human right by national and international organisations. However, in the recent times, it has come under extreme and indiscriminate control of the government of various countries throughout the world. It is increasingly being targeted by the state authorities and governments around the world and the number of internet shutdowns announced around the world is increasing year by year.
As per the report of Software Freedom Law Centre (SFLC), which is a legal community keeping track of internet shutdowns since 2012, 106 internet shutdowns were reported in India in 2019[i]. These frequent Internet Shutdowns act as a severe blow to the Fundamental Rights of the citizens. Article 19 of Indian Constitution provides us with the Right to Freedom of Speech and Expression which is greatly violated by Internet Shutdowns. In order to have a better idea of its impact on Article 19(1), the proper understanding of Internet Shutdowns is necessary.
What is an Internet Shutdown?
Internet Shutdowns refers to a situation in which the government imposes a restriction and prevents the general public from accessing the internet by blocking the servers. These shutdowns can be imposed in the whole nation as well as in the local limits. It can also be extended for indefinite period in extraordinary circumstances. However, access to Internet has achieved the status of fundamental rights in the recent times and such arbitrary internet shutdowns, in some way or the other, explicitly violate the fundamental rights as well as various human rights of the citizens who comes within its ambit. They restricts our autonomy, denies free will and undermines freedom of expression.
Till 2017, different types of Internet shutdowns were ordered under Section 144 of Criminal Procedure Code, 1973. In 2017, Section 7 of Indian Telegraph Act was amended which gave rise to Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017[ii]. These rules were initially welcomed with the preconception that there will be fewer shutdowns but to utter surprise of the citizens of India, the shutdowns increased. It is still being arbitrarily used by the central as well as state government to supress dissent thereby violation Right to Freedom of Speech and Expression enshrined under Article 19(1) of Indian Constitution.
Right to Internet: A Fundamental Right
There is no dispute that right of dissemination of information to population at large is included in Freedom of Speech and Expression under Article 19 (1)[iii]. The Supreme Court as well as the High Courts have from time to time reiterated the inclusion of internet within the mediums of free speech and expression and the obligation of state and government to promote such independence.[iv] In order to retain democratic ideals of the constitution, the freedom of speech and expression through the means of internet is of great importance and any indiscriminate shutting down of internet in order to suppress the dissent against the state goes against these ideals.[v] The wide range of circulation of information and the great influence which the internet has on individuals cannot be used as a justification to restrict its access at the whims of government.
In the past few years, the number of internet shutdowns has been increasing throughout various states in India by the application of Section 144 of CrPC and Temporary Suspension of Telecom Services Rules, 2017. There has been severe criticism to such arbitrariness of governments which serves as sufficient testament that the Right to Freedom of Speech and Expression has lately come under the scanner. In a country with more than half a billion internet users, these arbitrary measures of restricting access to internet not only leads to discontentment in common citizens and worsens the situation for which such measure is taken but also negatively impacts various aspects of trade and commerce in the country.[vi] In the contemporary digital era, a large amount of trading and commercial activities like stock market trading, online shopping platforms, electronic payment methods requires internet and the restriction on Internet leads to heavy losses to the people engaged in it as well as economy as a whole.
During 2012-2017 period, more than $3.04 billion has been lost by the Indian Economy due to internet shutdowns as per the report of Indian Council for Research on International Economic Relations[vii]. With the shutdown incidences doubling in 2018 and 2019, there has been rising dissent among the masses affected by their violation of freedom. Along with the violation of Article 19, Internet shutdowns also violate Right to Life under Article 21 as well as Right to Information of the citizen under Article 19 (1).
Need of Internet Shutdowns
However, Article 19 (1) does not give unrestricted right to a person of access to internet in the name of freedom of expression. Such Freedom of Speech and Expression is many a time used by some corrupt and mischievous people to spread fake news and false propaganda. In such case, the imposition of such extreme restrictions by way of internet shutdowns becomes imminent. A form of speech which qualifies to be equivalent to ‘incitement’ can be curtailed in accordance with Article 19 (2). Article 19 (2) permits the imposition of reasonable restraints on the freedom of speech and expressions provided under Article 19 (1) and the same applies to its exercise over internet for maintainence of social order and stability.
In some exceptional circumstance, the need of taking extreme measures in the interest of the safety of people becomes the need of the hour. Internet as a means of expression can also be used for hates speech and aggravates the situation. Be it the Communal Riots of Delhi or Terrorist activities in Jammu and Kashmir, the internet serve as the major medium of circulation of fake news and inciting messages. In the name of Freedom of Speech under Article 19, the situation can further aggravate and result in riots and thus restrictions on access to it become the need.
In order for the restriction imposed by the government by way of internet shutdown upon Article 19 (1) to qualify as reasonable, the danger in question needs to qualify as an immediate threat as per Article 19 (2) as well as it must also pass the 3- pronged cumulative test of transparency, legitimacy and twin test of necessity and proportionality. Thus, the speech and expression which encourages violent and destabilising activities and threaten security of state through the means of internet cannot be protected under Article 19 (1).
Internet Shutdowns and Court Judgements
The Supreme Court as well as various High Courts have, from time to time, expressed various opinions regarding the status of Right to Internet as a part of Fundamental Right of the citizens. The Kerala High Court in Faheema Sharin R.K. V. State of Kerala[viii] case where a student was expelled from the hostel simply due to she protested against hostel’s rule which prohibited usage of internet and mobile, held that Right to internet is considered to Fundamental Right under Article 19 and 21 of an individual and thus it cannot be violated arbitrarily. However, in the recent case of CAA- NRC protests, the Delhi Police ordered internet shutdown in various areas throughout the city and the Delhi High Court dismissed all petitions against it and upheld it. In Assam, although these protests turned violent and Guwahati High Court, in Bansashree Gogoi v. Union of India, ordered the authorities to immediately restore the internet services but take appropriate steps to curb circulation of provoking messages through internet.
The decision of three judge bench of Supreme Court in the case of Anuradha Bhasin v. Union of India[ix] on 10th January, 2020 was a landmark judgement on Right to Internet under Article 19. The Supreme Court, after hearing the matter relating to internet shutdown in Jammu and Kashmir, held that the right to freedom of speech and expression as well as right to freedom of carrying on any profession or trade through the means of internet is constitutionally protected under Article 19 and any restriction either by way of internet shutdown or else needs to be in consonance with Article 19 (2) and Article 19 (6) of Indian Constitution. The court laid down the following directions to determine the validity of Internet Shutdowns as per Article 19[x]:
1. Proportionality Test: The Supreme Court held before taking such extreme steps, the concerned authorities shall determine whether the action taken is proportionate to the purpose to be met. The government should take the least invasive step.
2. Publication of Order: They also asked the concerned authorities to publish all the orders issued for suspension of the internet with detailed reason for such shutdown so as to ensure transparency.
3. Only when extreme circumstances: The government can pass such orders only in cases of extreme circumstances and in cases of emergency[xi].
Thus, the court recognised the crucial nature of this issue and provided with the abovementioned guidelines so as to balance the Right to freedom and the government emergency. These test and these measures need to be implemented by the government so as to make their actions justifiable and work in the best interests of citizens. The arbitrariness with which internet shutdowns are implemented and enforced has already led to much friction between state and its citizens and to have a stable and peaceful co-existence, the state needs show legitimacy in their steps and ensure that there is no arbitrariness.
[i] https://thediplomat.com/2019/12/democracy-in-digital-darkness-internet-shutdowns-new-indian-normal/ [ii] https://sflc.in/legality-internet-shutdowns-under-section-144-crpc [iii] Faheema Shirin R.K. vs State of Kerala and Others (WP (C) No. 19716 of 2019 (L)) [iv] Anuradha Bhasin vs. Union of India, (2020) SCC Online SC 25, Para 3 [v] https://procejurelaw.co.in/2020/10/16/internet-shutdowns-a-constitutional-perspective/ [vi] https://blog.ipleaders.in/legal-validity-government-regulation-related-internet-shutdown-2019/ [vii] https://thediplomat.com/2019/12/democracy-in-digital-darkness-internet-shutdowns-new-indian-normal/ [viii] AIR 2020 Ker 35 [ix] 2019 SCC Online SC 1725 [x] http://www.legalserviceindia.com/legal/article-2967-right-to-internet-and-fundamental-rights.html [xi] https://blog.ipleaders.in/legal-validity-government-regulation-related-internet-shutdown-2019/