Access to Computers and the Internet has become a basic need for education
in our society.
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
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
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
- 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.
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)
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
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
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 itís 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
- Internet shutdowns can be of temporary period but not for indefinite
- Government to publish all orders imposing restrictions under Section
- 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.