A LEGISLATIVE APPROACH OF INTERNET SHUTDOWNS IN INDIA BY - SHRESHTH BHATNAGAR

A LEGISLATIVE APPROACH OF INTERNET SHUTDOWNS IN INDIA

AUTHORED BY - SHRESHTH BHATNAGAR[1]

Abstract

This article is a brief comment on a recent event that has taken place in India with regard to the blocking of internet access. In former periods, it was impossible to fathom the power and reach of the internet, and regulations that were written at the time did not take into account the technology that is available today. People in this day and age often have social media profiles on many platforms, including as WhatsApp, Meta, and Instagram, which let them to communicate with a variety of people, including members of their families. And other commercial activities take place mostly on internet only where everything is electronics based, Internet shutdowns are often implemented in these kinds of circumstances in order to prevent the situation from becoming even more serious than it already is. Nevertheless, this connection is disrupted if there is any community confrontation or even an anticipation of it. At first glance, it would seem that these shutdowns are being carried out for the better interest of the community as a whole; nevertheless, the circumstances under which these shutdowns are being carried out should be given some thought.

Historically, section 144 of the Code of Criminal Procedure CrPC, 1973 was used to place limits on the internet. But, since 2017, the Internet Suspension Regulations, 2017 and the Telegraph Act, 1885 have been used to impose shutdowns of the internet. The purpose of this research paper is to concentrate on the legal concerns surrounding the shutdown of internet service in current age of digitalization.

Keywords: Internet Access, WhatsApp, Instagram, digitization, CrPC,1973

A LEGISLATIVE APPROACH OF INTERNET SHUTDOWNS IN INDIA

1.1 Introduction-

The number of internet blackouts throughout India's whole area is far higher than any other country in the region. This internet connectivity has been interrupted by the Indian State at least 106 times in 2021, making it the world's largest offender for the fourth year in a row. It is humorously ironic that Myanmar, which only had 15 internet interruptions, was the country that enforced the second largest number of internet shutdowns.[2] Internet shutdowns are subject to two different procedural mechanisms, the first of which is contractual and the second of which is statutory. Although statutory requirements are created by sections 69A of the Information Technology Act 2000, 7 of the Telegraph Act 1885, and 144 of the Code of Criminal Procedure 1973, contractual obligations are related to the contract that was made between the government and Internet service providers.[3]

Blocking any access to information is permitted under the Information Technology (Procedures and Safeguards for Blocking for Access to Information by Public) Regulations, 2009 in specific. Nevertheless, the scope of blocking here is restricted since it is not possible to block the internet as a whole and only a select number of websites are permitted to be banned using it. Prior to the year 2017, internet shutdowns or limits were carried out in accordance with the orders issued under section 144 of the Criminal Procedure Code. This is a general clause that gives judges broad authority to issue orders if there is any suspicion of impending danger. The concept of the internet did not exist around the time when the Criminal Code of 1973 was being drafted, hence it was not taken into consideration. The Temporary Suspension of Telecom Services (Public Emergency & Public Safety) Regulations, 2017, were announced in accordance with section 7 of the Telegraph Act of 1885. These rules control the limits that were placed on telecommunications services after 2017. The absence of a time term for the restrictions or any protections for persons who are harmed by such restrictions reveals the expansive nature of the potential for such restrictions. Several of the rules included inside were left up to interpretation, such as what the term "temporary" suspension of internet access meant or when and how long after the first suspension the review committee would gather to examine the internet blackout.[4]

there were at least 36 instances of internet shutdowns in Rajasthan between 2012 and 2021. The reasons cited for these shutdowns include preventing the spread of fake news and rumours, maintaining law and order, and in some cases, to prevent cheating in exams.

One of the most prolonged internet shutdowns in Rajasthan occurred in 2019, when the government suspended internet services in several districts in the state for over two weeks in response to protests against the Citizenship Amendment Act (CAA). The shutdown was imposed under Section 144 of the Criminal Procedure Code and was lifted on December 30, 2019, after the situation was deemed to be under control.[5]

Internet shutdowns have been a topic of debate and criticism as they can have severe consequences on people's access to information, communication, and livelihoods. They also have implications for the freedom of expression and human rights. The Supreme Court of India has recognized the right to access the internet as a fundamental right and has stated that any restriction on the right to access the internet must be justified by legitimate grounds and must be proportionate. "These disruptions are jeopardising the future of India's tech economy and digital livelihood ambitions for a country chairing the G20, and on the eve of its pivotal 2024 general elections — truly a global shame," said Raman Jit Singh Chima, Asia-Pacific policy director at Access Now. Because people cannot access essential medical, educational, and financial services, internet outages paralyse daily life.[6]

An Internet shutdown is not specifically defined by the United Nations Human Rights Council or India's newly released Internet Shutdown Rules 2017. Knowing the extent of what constitutes an Internet shutdown is the first step in quantifying its economic impact, which is the study's immediate aim. A workable definition for Internet shutdowns has been proposed by a number of interested parties and professionals. "Internet shutdown is an intentional disruption of Internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information," according to a generally accepted definition provided by the crowd.[7]

1.2 Measuring the Economic Impact of Internet Shutdown

Digital technology's influence is growing quickly in both industrialised and developing nations. Most of the socioeconomic activity in India today revolve on the Internet thanks to a significant legislative push. Due to a meteoric rise in data consumption, India's Internet economy is predicted to reach USD 250 billion in 2020 (7.5% of GDP). Financial services and e-commerce will probably take the lead in this growth17. According to a recent poll, Indians spend 45 percent of their total mobile time on entertainment, 34 percent on search, social media, and messaging, and just approximately 4 percent on shopping18. India already ranks first in the world for mobile data consumption. highlighting the disruptive impact of Reliance Jio, which entered the market in September 2016 and generated huge adoption with its free data and voice plans. at levels that are 50% higher than that in China. India's fascination with mobile devices is further highlighted by the steady increase in smart phone subscribers and average monthly data costs despite slow network speeds and expensive gadgets.

It's interesting to note that rural areas are driving this increase, where adoption rates have recently surpassed those in metropolitan areas.[8]

The OECD was expected to provide the first accurate quantitative assessment of economic disruption in 201128. It cited an anticipated loss of USD 90 million due to the five-day suspension of Internet and telecom services in Egypt. However, the indirect effects on Internet-related industries like e-commerce, tourism, etc. were not considered in the loss estimates. According to more recent research by the Brookings Institution29, between July 2015 and June 2016, internet outages cost nations around USD 2.4 billion. For the 70.54 days that the Internet was down during this time, India's reported estimate was USD 968 million. In order to arrive at cost estimates for each shutdown, the study triangulates figures from the literature on the contribution of a country's Internet economy to GDP and the multiplier impact it creates, properly differentiating between mobile and fixed line interruptions. The report does concede that there are issues with accuracy because there is a dearth of pertinent economic data.[9]

1.3 legality of Internet Shutdown in India

India has experienced numerous acts of violence in recent years as a result of laws passed by the Union Government, such as a new amendment to the Citizenship Amendment Act, 2019 and the repeal of Article 370, which could have led to internal conflict. When this happens, it sometimes becomes necessary to shut down internet services in order to maintain peace. In times of unrest, it has become standard procedure for law enforcement organisations and even the government to shut down the internet. It has been reported that problems with internet outages and telecommunications outages in Jammu and Kashmir have persisted for a very long time, and that internet services have also been suspended in several Northeast cities and the state of West Bengal due to violent protests against the 2019 Citizenship Amendment Act. The use of this tactic by law enforcement and government authorities to lessen the ferocity of these violent protests and riots has been witnessed in a number of situations. The government is utilising this internet blackout as a tool to prevent the dissemination of any material that might incite violence or have an adverse effect on the nation's internal security.[10]

Due to the ambiguity of these guidelines, the Supreme Court intervened in the cases of Anuradha Bhasin[11] and Ghulam Nabi Azad[12]. These two instances revolve around the extended internet blackout that occurred in Jammu and Kashmir in August 2019, which prompted journalist Anuradha Bhasin and politician Ghulam Nabi Azad to file a case with the Supreme Court challenging such shutdowns as a violation of their rights to freedom of speech and expression under Article 19(1)(a) and the right to engage in commerce under Article 19(1)(g) of the Indian Constitution.

Due to the Rajasthan Exam for Teachers (REET 2021) and the alleged suspicion of cheating via social media or the internet, internet shutdowns were enforced in the districts of Bundi, Ajmer, Baran, Udaipur, Jhunjhunu, Kota, and Jhalawar in the state of Rajasthan on September 26, 2021, for a period of 12 hours.[13] In accordance with Rule 2(1) of the Suspension Rules, the internet suspension was ordered. One may argue that the mere suspicion of online fraud does not satisfy section 5(2) of the Telegraph Act's legal requirements. Furthermore, the Divisional Magistrate issued the orders, despite the fact that Rule 2(1) of the Suspension Rules makes it clear that only a Joint Secretary has the authority to do so. Therefore, even though it is a justifiable goal to prevent exam cheating, internet suspension is not the proper legal remedy, and even if it were, it is not being applied correctly. The rights under Article 19(1)(a), which relate to one's right to freedom of speech and expression, would be materially breached as a result of these internet shutdowns' constitutional standing, it should be underlined. It is possible to argue that prohibiting internet services violates Article 19(1)(g) since it interferes with the right to commerce. Although it is important to note that internet services are restricted in this situation when a public emergency or threat to public safety arises, the government should keep in mind that no pointless internet restrictions should be implemented, especially given how dependent society is on the internet today. In the Standing Committee on Communications and Information's 26th Report, The Committee found that the Department of Telecommunications and Ministry of Home Affairs' responses to questions posed by the Ministry of Communications on "Suspension of Telecom Services" regarding the proportionality principle and the process for removing internet shutdowns were ambiguous. The Committee therefore observed that the purpose of internet shutdowns is to protect public order and that the lack of a method for restoring an internet ban is troubling and warrants investigation. If these problems are not addressed, several writ petitions under Articles 226 and 32 of the Constitution may be filed in either the High Court or Supreme Court.[14] The Indian economy is also negatively damaged by this, since India had to pay $583 million in costs in due to these internet outages, 2021.[15]

Articles 14, 19, and 21 of the Indian Constitution are violated when online access is restricted in an effort to control people. According to article 19 subclause (a) of clause 1 of part III of the Indian Constitution, the freedom to access the internet is a basic right.

In late October of this year, when the Supreme Court of India delivered its ruling on the Ayodhya case amid fears of unrest and bloodshed, the internet was briefly banned in the states of Rajasthan and Uttar Pradesh. Additionally, after protests by the populace in the state of Assam, internet services were restricted in that state after the Parliament passed the Citizenship (Amendment) Act on December 11th, 2019.

The first state in India to formally recognise "the right to internet as a basic human right, internet as the pathway to the future, and right to access internet as necessary for living a decent life" was Kerala. According to the authorities, cutting off the internet in some areas of Kashmir has saved lives, but when questioned about how this may affect kids' futures, they denied any such thing. "The shutdown of internet services and telecommunication networks, without justification from the government, are inconsistent with the fundamental norms of necessity and proportionality," according to UN experts on the situation in Jammu and Kashmir, was stated in the statement.

According to data reports, India saw 400 internet shutdowns over the course of the previous 10 years. When the Indian Parliament repealed article 370 of the Constitution, as stated by the President's order under section 272, the internet was shut down on August 4, 2019. The Union Territories of Jammu and Kashmir and Ladakh were created out of the state of Jammu and Kashmir. 4G internet services were prohibited under section 144 of the Indian Penal Code, 1860, due to concerns about national security.

Due to security concerns, internet connectivity was reinstated on March 4, 2020, 213 days after it was cut off. The lengthiest stretch of internet outages had ever been recorded. Between 4 August 2019 and 4 March 2020, a total of three rulings were rendered by The Supreme Court of India issued The right to the internet from 4 August 2019 to 4 March 2020.

Faheema Shirin V State Kerala[16] Faheema and her other detainees begged to have this limitation removed, but when they were rejected, the university forced them to leave the hostel room within a certain amount of time without letting them take their possessions. The question of whether the petitioner's basic rights were violated by the restriction imposed by the dormitory management was brought up before the High Court of Kerala. In order to "achieve excellence and enhance THE quality and standard of education," the students should be permitted to use their mobile phones, according to the Hon'ble High Court, which claimed that because these students are adults, they are capable of taking responsibility for their studies.

The question of whether the petitioner's basic rights were violated by the restriction imposed by the dormitory management was brought up before the High Court of Kerala. In order to "achieve excellence and enhance THE quality and standard of education," the students should be permitted to use their mobile phones, according to the Hon'ble High Court, which claimed that because these students are adults, they are capable of taking responsibility for their studies.

Anuradha Basin v. Union of India[17] is a case that directly relates to the suspension of internet and broadband services in Jammu and Kashmir and the revocation of Article 370 of the Constitution. The Kashmir Times' executive editor Anuradha Basin imposed a petition. where the ban on using the internet as of August 4, 2019, was contested. And as the access to the internet falls under the purview of article 19 sub clause (a) of clause 1 of the Constitution, restrictions on free movement and the closure of online communication channels both infringe article 19's basic rights. It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way - Justice N.V. Ramana, who wrote the verdict, quoted " the book A Tale of Two Cities prior to reading the verdict According to the Honourable Supreme Court of India, "due to an immediate threat or security concern, a temporary ban on services is permissible; however, a ban of internet services for an indefinite period of time is not right, the balance between national security and human rights should be maintained." After the ruling on January 10, 2019, 2G internet services were permitted.

The blanket prohibition on 3G and 4G was contested in Foundation of Media Professionals v. Union Territory of Jammu and Kashmir[18], often known as the 4G case. In this instance, it was claimed that such restrictions violate the Constitution's fundamental rights to health, education, and employment. The Hon'ble Supreme Court established rules for the restart of 4G services and stated that "there should be balance between national interest and human rights." After extensive deliberation, the centre decided to restart services in a small number of locations as a trial.

1.4 Conclusion

Determining if internet shutdowns are legitimate is difficult. Even though we agree There are reasons to support such actions, despite the fact that Internet shutdowns are a very intrusive kind of censorship. It is not acceptable to assume such behaviour in any manner, yet we suggest that a more nuanced and open discussion about why certain governments are adopting the seemingly extreme steps they are, how they may be limited, or when they can be justified is necessary in light of the growing flood of incitement to violence on social media platforms.

When it comes to limiting official arguments for shutting down the Internet on the grounds that they endanger civil security, the ideas of fairness, legitimacy, and proportionality should be considered. But this study is merely a structured exercise with no execution strategy. It appears likely that the pace and inconsistent usage of shutdowns would continue until those most frequently used widespread shutdowns often hired, many of whom are in Africa; consider something more complex and subtle due to the lack of a balanced and open conversation regarding the policies and processes needed for Internet shutdowns and compliance with domestic and foreign applications. Technologies for monitoring, disinformation, and other forms of surveillance are no longer friendly to people. correct shutdown measures required.

India is still in front of the group, it may be said. The ongoing shutdowns in India not only make it difficult to conduct online trade and business, but they also prevent people from earning a living. The internet serves as a platform for more than just expressing one's right to free speech and expression. But it also serves as the foundation for the expanding economy. Having no access to the internet has a significant influence on the weaker groups in society since they rely on it for their survival and livelihood. the government's attempt to demonetize In November 2016, the Indian government launched a project that uses the internet.

Through the initiative known as Digital India, our government has set a lofty goal for the digitalization of India. And until there is a real threat jeopardising public order and tranquilly, internet shutdown is not equivalent to a digital India. A total ban on the internet would thus be excessive because it has become a necessary component of our everyday lives.

[1] Shreshth Bhatnagar, Assistant Professor, Alliance School of Law, Alliance University, Bengaluru

[2] Report: Internet outages in India in 2021 by F. Anthonio. Access Now, last accessed on 13/11/2022, is accessible at https://www.accessnow.org/internet-shutdowns-india-keepiton-2021/.

[3] Anuradha Bhasin v. Union of India AIR 2020 SC 1308

[4] Standing Committee on Communication and Information Technology, Lok Sabha, 26th Report on Suspension of Telecom Services/Internet and its Impact, December 2021, page 56, available at: http://164.100.47.193/lsscommittee/Communications%20and%20Information%20Technology/17 Communications and Information Technology 26.pdf

[5]Live Law, After Rajasthan Govt’s Internet Shutdown To Prevent Cheating In Public Exam, Plea In Supreme Court Seeks Enforcement Of Shutdown Guidelines
https://www.livelaw.in/top-stories/rajasthan-government-internet-crackdown-schoolteacher-examination-supreme-court-sc-petition-enforcement-anuradha-bhasin-222775 (Visited on 24-03-2023)

[6] Murali Krishan, India: Internet shutdown capital of world, https://www.dw.com/en/india-internet-shutdown-capital-of-the-world/a-64997062 (Visited on 30-04-2023)

[7] Access Now, a civil society organization has developed the definition resulting from their #Keepiton Campaign. //www.accessnow. org/keepiton/ (Visited on 20-04-2023)

[8] G N Bureau Rural Indian leads  growth in mobile internet users, http://www.governancenow.com/news/regular-story/rural-india-leads-growth-in-mobile-Internet-users (Visted on 22-04-2023)

[9] Rajat Khaturia, Mansi Kedia, Ganesh Verma, kaushambhi Bagchi, Richa Sekhani: An anatomy of Internet Blackout: Measuring the economic impact of internet shutdown in india, https://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf (Visited on 30-04-2023)

[10] Ayush464: The Legality of Internet shutdowns in India: https://www.legalserviceindia.com/legal/article-3236-the-legality-of-internet-shutdowns-in-india.html (Visited on 22-04-2023)

[11] Anuradha Bhasin v. Union of India AIR 2020 SC 1308

[12] Ghulam Nabi Azad v. Union of India, Writ Petition (civil) No. 1164 of 2019

[13] Internet Shutdown in Rajasthan: Mobile internet suspended for RAS Prelims exam across Rajasthan today, The Times of India. The Times of India, available at https://timesofindia.indiatimes.com/city/jaipur/mobile-net-suspended-for-ras-prelims-examacross-raj-today/articleshow/87290703.cms (Visited on 22-0402022)

[14] Page 56, Standing Committee on Communication, and Information Technology, Lok Sabha, 26th Report on Suspension of Telecom Services/Internet and its Impact, December 2021, http://164.100.47.193/lsscommittee/Communications%20and%20Information%20Technolog y/17_Communications_and_Information_Technology_26.pdf

[15] 9 Sumant Sen, The cost of internet shutdowns in India, in charts, Mint (03/05/2022), available at https://www.livemint.com/economy/internet-shutdowns-are-a-costly-affair-and-indialeads-in-them-11651475862075.html, last seen on 30/09/2022.

[16] WP (C). No. 19716 of 2019 (L)

[17] Writ Petition (CIVIL) No. 1031 of 2019.

[18] Writ Petition (Civil) of 2020, (D. NO. 10817 of 2020)