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The Legality of Internet Shutdowns in India

Access to Computers and the Internet has become a basic need for education in our society.-Kent Conrad

In the past few years India had gone through several violence occurred as a result of certain legislations by the Union Government such as a new amendment in The Citizenship Amendment Act, abrogation of Article 370 etc. which could be resulted in Internal Aggression, due to such violence in the Country sometimes it becomes the need of the hour to shut down the internet services to maintain peace.It has become very common practice for law enforcement agencies and even for the Government to cut down the internet during the moment of tension.

It has been in the news that the issues in Jammu and Kashmir regarding internet shutdowns and also the break in telecommunication facilities lasted for a very long time, and also in several places of North-East and in the state of West Bengal the internet services had been shut down after the violent protest against the Citizenship Amendment Act,2019. There are several incidents as such where the law agencies and Government officials are using this practice to cut down the intensity of these violent protests and riots. The Government is using this internet shutdown as a weapon to stop the spread of any such information which can cause violence or which can impact the internal security of the country.

Internet Shutdowns may be defined as any disruption in access to the internet services most of which deals with mobile internet. As per the report provided by Quarterly Indicators Performance Report by TRAI, more than 90% Indians access the internet through the mobiles.

The Internet actually actualizes a lot of Fundamental Rights beyond Freedom of Speech and Expression because today in a digital era people utilizes it to avail rations, card transactions, talk to their relatives, manage healthcare and much more activities which in fact are very necessary for a person to perform its daily functions. Internet shutdowns in India are tracked by a non-profit Software Freedom Law Centre (SFLC) which is based in Delhi.

Internet shutdowns by themselves were historically expressed under the Section 144 of CrPC that permits the Magistrates to direct properties i.e. cell phones, towers etc to be used in certain ways. This power has been utilized by magistrates to infact prevent or cease the internet services in certain areas for certain durations which has ordinarily been 48-72 hours, and it has been challenged too.

The first such challenge was filed in Gujarat High Court by the petitioner Gaurav Suresh Bhai Vyas and this was to the issuance of internet suspension order during the Patidar Agitation, the Gujarat High Court upheld the exercise of the power by stating that the broadband internet services was not prohibited and it was only mobile internet that is prohibited.

This was appealed subsequently to the Supreme Court under the basis that there is much more specific power under the Indian Telegraph Act under Section 5(2), the Supreme Court refused to hear this. After August 2017 the second challenge was made in Rajasthan High Court, the month was very much significant as the Central Government notified and made rules under Section 5(2) of Indian Telegraph Act, which not only has the power of intercepting a class of messages with regard to a person or class of persons but also has the power of suspending telegraph services and this power has been further detailed in the Telecom Internet Suspension Rules formulated in August 2017.

These rules outline several legal requirements but failed from a core problem in terms of lack of transparency and non-publications of the orders in regard to internet shutdowns.

Recent Instances:
  • There have been 55 internet blockades in Jammu and Kashmir in 2019
  • There were 11 internet blockades in Rajasthan in the same period.
  • As per the estimates, in 2018, out of the 196 internet shutdowns accumulated from 25 different countries, the country with majority was India with the count of 134.
  • In terms of duration the longest running shutdown was in Jammu and Kashmir around 5 months in 2016.

Legal Provisions
Till the year 2017, shutdowns were imposed largely under Section 144 of the Code of Criminal Procedure (CrPC). Section 144 of CrPC gave the police and the District Magistrate the powers in order to prevent unlawful gathering of people and also to direct any person to abstain from a certain activity. However, in 2017 the law was amended and the Government promulgated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rule 2017.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017:

The substantive law regarding suspension of Internet services is a broad interpretation of Section 5(2) of Telegraph Act 1855, although the traditional law regarding the same was not a lump of the former Act or Rules.

The method to suspend telecom services in case of public emergency or public safety and consequently, the suspension of Internet services in India was notified under Section 7 of The Telegraph Act, 1855, in August 2017, the rules were named Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

The efficient authority who are able to order such directions are:
The Secretary in the Ministry of Home Affairs. (Central Government)

The Secretary of the Home Department to the concerned State Government. (State Government)

As per these rules, without the permission of the aforesaid authorities the order to suspend telecom services shall not be issued. According to rule 2(1) the order to suspend the telecom services shall be given only under these rules and according to the procedure mentioned. This also makes it clear that any order for suspension of telecom services may not be given under any other provision of law, even not under Section 144 of CrPC 1973. However, in inevitable circumstances, such an order may be issued by an officer ranked Joint Secretary or above who has been properly permitted by the Union Home Secretary or State Home Secretary.

Even so, inevitable circumstances have not been defined under the Telegraph Rules, Telegraph Act or any other legislation or judgments by court of law, so there is no prescribed method to observe a situation as inevitable. Now the question arises who will decide whether a circumstance is inevitable and how?

Further the Rules states that the order issued under inevitable circumstances will be subject to the confirmation from the aforesaid authorities within 24 hours and will cease to exist in case of failure to obtain the confirmation. The rules mandate that the order passed by the efficient authority must contain reasons for such direction and a copy of the order must be forwarded to a Review Committee by the next day.

The Review Committee shall comprise of:
Cabinet Secretary, and Secretaries of Legal Affairs and Department of Telecommunication, in case of Union Government;

Chief Secretary, Secretary Law or Legal Remembrancer concerned, Legal Affairs and Secretary to the State Government (except Home Secretary), in case of State Government.

The Review Committee is duty bound to meet within next five working days of the issuance of order and make a record that whether the suspension has been made conforming with the provisions under section 5(2) of the Indian Telegraph Act.

However, there are still several areas of concern surrounding these Rules. There is no provision under the rules which provide for notification of shutdowns in press or official gazettes. The TSPs presenting Internet services in the country do not even issue notifications before imposition of internet shutdowns. Many times users from pretentious areas are often found unaware and do not have much time to make arrangements to reduce the impact of shutdowns.

Orders of Supreme Courts
In January 2020 the Supreme Court by ruling on Jammu and Kashmir Internet shutdown held that indefinite internet shutdowns by the State is not permissible under Indian Constitution and it´┐Żs an abuse of power. The apex Court further stated that imposition of Section144 can not be used as a mechanism to avoid genuine protest which is permitted under the Constitution. Section 144 has very specific parameters, only if those parameters are satisfied then only a Magistrate can pass the orders.

Key Highlights of the orders:
  • Usage of the Internet is the Fundamental Right under Article 19 of the Indian Constitution.
  • Internet shutdowns can be of temporary period but not for indefinite period.
  • Government to publish all orders imposing restrictions under Section 144.
  • The Court had also said that any order with regard to Internet Shutdowns will come under Judicial Scrutiny.

This study concludes with a quick look at the provisions of law that enables the Government and its other law agencies with its agents to put up telecom services across India. In a democracy Governments should provide a rationale for disrupting the internet services in a periodic manner. The publications of all the orders must be made to maintain the transparency.Indiscriminate shutdowns have high social and economic costs and are often ineffective. A proportionality and necessity test analysis to determine the proper course of action are essential at this juncture. For better internet governance the Indian civil society needs to push for a transparent and accountable system.

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