hiddenApr 24, 2017 10:06:46 IST
By Asheeta Regidi
The increasing number of internet shutdowns in India is a major cause for concern. The most recent was a 48-hour shutdown in Odisha over an objectionable social media post. Jammu & Kashmir also saw shutdowns yet again to prevent rumour-mongering. The Software Freedom Law Centre reports a total of 73 shutdowns in India, shutdowns in J&K made up 31 of these. SFLC also reports a steady doubling of the number of shutdowns each year – 3 in 2012, 5 in 2013, 6 in 2014, 14 in 2015 and 30 in 2016. The frequency of the shutdowns for various reasons show a worrying trend of shutting down the internet as a matter of routine.
Are internet shutdowns becoming routine?
The most obvious abuse of this provision is its use to prevent cheating in exams. Apart from this, research by the SFLC indicates a very wide-ranging list of reasons for the shutdowns, triggered by unrest of one form or the other. This includes preventing misuse of social media during communal violence, protests after incidents of rape or murder, anti-religious material like anti-Muslim messages and desecration of deities, etc.
More specific examples include the Patel reservation and the Jat reservation agitations. In J&K, the reasons include the Prime Minister’s speech, clashes with the armed forces and Eid unrest. This was also used to prevent the spread of misinformation during elections in Meghalaya, and after the death of the Arunachal Pradesh Chief Minister.
The range of reasons indicate an increasingly routine shutdown of the internet in response to any kind of unrest, protest, or any political event.
Shutdown orders passed under CrPC
These shutdowns orders are mostly passed, not under Indian information technology laws, but under Section 144 of the Criminal Procedure Code, 1973. IT laws in India, in fact, lack specific provisions for internet shutdowns. The trouble with the use of Section 144 for this is that it is a law designed to maintain law and order when there is a fear of disturbance of the peace. It grants wide ranging powers to Magistrates to take any measures necessary in situations like riots. Fundamental rights like the right to speech and the right to assemble peacefully can be suspended.
Shutdowns impact communication, economy
However, shutting down the internet has more far reaching consequences than the mere suspension of the right to speech. For instance, research has shown that contrary to preventing misinformation, the lack of information creates more fear and apprehension in the minds of people. Fair and immediate reporting of events, including atrocities, is very important in situations of unrest, but this comes to an end. More constructive uses of the internet, such as using it to provide accurate information, are not being considered.
Apart from this, the economic impact of shutdowns can be seen in the reported business losses of $968 million (around Rs 6,258 crores) in India. The state of Gujarat alone reported losses of Rs 7,000 Crores due to disruption of banking services. Internet shutdowns also impact the daily lives of people. The internet has become indispensable for communication and for finances, particularly in the era of ‘Digital India’ and demonetisation. In such times, it is surprising that the government is not giving greater priority to unrestricted and free internet access.
Section 69A is more appropriate for such orders
Internet freedom activists have long since argued that Section 69A of the IT Act, the provision for blocking websites, is the more appropriate power for internet shutdowns.
Section 69A gives the power to block access to any ‘computer resource’. This term is arguably broad enough to include internet services and their suspension. Under this, only the Central Government will be able to issue shutdown orders. Alternative to shutdowns, is that the government selectively restrict access to only social media websites, or such other websites which are the cause of the harm.
The detailed procedural safeguards under Section 69A with its accompanying rules, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, can prevent abuse of the process, unlike Section 144 of the CrPC, which has no such safeguards.
Restrictions to the right to speech should be minimal
Another issue is that Section 144 should be used as a last resort, with minimum possible restriction on the freedom of speech. In ordering internet shutdowns, however, less invasive means such as restricting only selected websites are not being considered.
Even under Article 19(2) of the Constitution of India, restriction of the right to speech is permitted on certain grounds – sovereignty and security of India, friendly relations, public order, decency and morality. These grounds are also reflected in the grounds for blocking under Section 69A of the IT Act, with the addition of preventing the incitement of a cognisable offence.
Section 144, on the other hand, gives much broader grounds – such as preventing obstruction, annoyance and injury to a person, danger to human life, health or safety, or disturbance to public tranquility, or riot, or affray. This indicates a greater possibility of abuse of process, or overreach of the law. This also indicates that Section 69A is the more appropriate means for a suspension of the right to speech.
Supreme Court has upheld internet shutdowns
In Gaurav Sureshbhai Vyas versus State of Gujarat and a subsequent Special Leave Petition, these arguments against internet bans were dismissed by the Gujarat High Court as well as the Supreme Court. The Courts ruled that the exercise of the power by the State governments under Section 144 was legal, and a necessary exercise for the maintenance of law and order. Further, a large number of shutdowns suspended only mobile internet services and not broadband services. The Courts ruled that this complied with the minimum restrictions requirement under Section 144.
Introduce procedural safeguards under Section 144
With the hope that the Supreme Court will reconsider its view in subsequent petitions against internet shutdowns, at the very least, procedural safeguards should be introduced under Section 144 itself. These can, for instance, prescribe stricter conditions and limitations for the curbing of the internet. One can compare this to the judicially imposed restrictions on the exercise of Section 5(2) of the Telegraph Act for phone tapping, issued in PUCL versus Union of India. This will allow the State governments to take the necessary action to protect their States, while also preventing internet shutdowns as a default precautionary measure.
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject