Critically Assessing Legality of Internet Shutdowns

Abstract

The blog examines the critical assessment of growing internet shutdowns in India. The blog further evaluates the violation of fundamental rights as well as the human rights due to internet shutdowns. The rational analysis of the lacuna in the laws governing internet shutdowns is made as well as the pessimistic impacts of the internet shutdown. It also underlines the need to change the laws and policies governing the internet shutdowns. The critical analysis of the various judicial pronouncements regarding internet shutdowns is made. The blog tests the constitutionality of Postponement of Telecom Services (Public Emergency and Public Safety) Rules, 2017, the provisions under the Code of Criminal Procedure, IPC and various other laws.

Keywords- internet, shutdowns, constitutionality, impact, section, fundamental

Internet Shutdowns are tremendous lockdowns are in direct violation of Article 19(1) (a) of the Constitution of India which gives the liberty of speech and expression to the people but halting of internet avail people from their rights. Regarding this, a 2016 resolution of UNHRC states that “the equivalent human rights that individuals have offline must be safeguarded online”. We can’t disregard that violence in any kind disturbing public security will tremendously lead to internet shutdown by the government where the voice comes out stating that, “prevailing law and order affairs was a reason to shut off voice, SMS, and internet service in the area.”

Till now the longest shutdown takes place in Jammu and Kashmir for 213 days in 2019-2010 during the abolition of Article 370. Perhaps, the internet is a fundamental platform for sharing correct and appropriate information to avoid manipulation of minds. Internet is not only used of sharing thoughts and idea but also used in the private sector for there working, in hospital and pharmacy it becomes difficult to reorder and restock lifesaving medicine and surgical equipment’s to save people life and maintain patient data, in the banking sector for keeping the record of the data and many more.

Pessimistic Impacts Arising Out of Internet Shutdowns

During the annoyance of the CAA protest, many routes got diverted and people were unaware. The hardship in finding the correct route on Google Maps became agitated as the phone pops up with a message that “internet service of your area is currently shut down as per government orders”. Non-operation of public transport due to such protests at that time left no option for people to utilize cab services for traveling. Anyhow, these services were also inoperable as such applications on phone require internet services. As on 19 December 2019, when the student protested against the new Citizenship Amendment Act the government blackout the internet in many sections of the Delhi. Mass breakdown of broadcasting channels due to internet disruption causes heavy loss to businesses, trading companies, economic process, payment operations, banking transactions, and other inconveniences in studies. Many emergency services are seized which creates a direct violation of human rights as per the Human Rights Council. There is no excellence of protection of the Right to freedom of speech and expression. Long term harm is caused to the people as shutdown causes denial to access to knowledge, peremptory economic harm and causes social injustice. The impacts on educational rights are highly grievous as citizens are robbed off from accessing information, education plans or programs and other educational activities and by getting so much indulge in all this we were incompetent to summon up the earnings of the internet companies during these blackout periods.

Legal Test of Constitutionality: A Direct Infringement of Human Rights

In January 2020, the right to access the internet has been made fundamental right by the Apex Court of India under Art. 19 of the Constitution of India. The legalized outlook of India has harmonized with the UNHRC which declaratory made internet access a human right. The highly principal decision is required to set up a limit on the internet shut down otherwise because of this legacy of government to shut down the internet on every matter place public in a lot of inconveniences. These 2017 Rules were only made for the institutionalization of internet shutdown. Perhaps, no Endeavour was made for good accountability of such rules. Grievous misuse can be done just for the sake of the name of public order in any of the circumstances by the officers authorized. The legalization of such rules has no judicial review, seeing plenty of instances where these shutdowns have not been even challenged to check the veracity of constitutionality. The Supreme Court in Anuradha Bhasin vs. Union of Indiaheld that Power under Sec. 144 Cr.P.C is preventive and remedial, it should also be in operation where even mere trepidation of danger exists but can’t be imposed for an indefinite period. It shall be operative only when conditions are unavoidable.

Lacuna in the Laws Governing Internet Shutdowns

The absence of legal evidence fails to prove that the internet shutdown is efficient for solving such far-reaching issues. Sec. 144 of Cr.P.C gives power to District or Sub Divisional Magistrate to order TSPs to stop Internet services within his jurisdiction. Regardless, in Sureshbhai Vyas vs. the State of Gujarat, the apex court in 2015 held that state government is an experienced authority to exercise such power under this provision and this is a discretionary power to exercise with shrewdness, public obligation and the abundance of action in their view. 1.9% daily Gross Domestic Product is lost each day during internet shutdowns founded by Worldwide Network Initiative Distressing denouement is that there no other feasible alternatives. In 2016, Apex Court held in Cellular Operators Association of India & Ors. vs. Telecom Regulatory Authority of India & Ors, that there should be a “good working test of ‘transparency” under section 11(4) of the TRAI Act. As section 7(2)(e) of the Telegraph Act empowers that Parliament has substituted the Government, the power to make rules for the “conditions and restrictions” of the internet accordingly. The Provisional Postponement of Telecom Services (Public Emergency or Public Safety) Rules, 2017, presently the Central Government gave power to the competent authorities to validate internet shutdowns. The new administration of Suspension Rules of 2017 lacks absolute transparency. It has to be noted that Sec. 5 is only valid on the occurrence of public emergency held in the famous case of Hukam Chand Shyam Lal vs. Union of India and Others. These rules do not subscribe to the ideologies of natural justice because proficient authority and the review committee are not empowered to examine principles of natural justice during decision making. Regardless of this power, before passing suspension orders the capable authority has no mastery to perceive representations from anyone. Earlier, there was no prescribed maximum or minimum period for internet shutdown order and automatic termination of the same under Sec. 144 of C.r.P.C but in the new regime the Apex Court in PUCL judgment has laid down that suspension orders should initially be valid only for two months unless the contrary appears. The secretary review must be completed within a day but the rules prescribe a time limit of long five days. Being perceptibly unreasonable, the consequence of constitutionalism and natural justice must be applied here to prevent abuse of power. Section 144, Cr.P.C power cannot be utilized to defeat legal expression of opinion or exercising democratic rights. Sec. 153A of IPC, 1860 bans hate speeches promoting enmity in between various groups. These rules should expressly have provisions relating to restoring internet services to hospitals, establishments, and educational institutions during these cyber curfews.

CONCLUSION

The modern economy governs intensely with digitalization where the Internet is indispensable for the global social, political, national and overall economical development of the country. Our globalized economy and developing society cannot oversee the penalties of drastic results of internet shutdown across the globe.

The current operation of the internet shutdown must be renovated to make better preeminence on translucency and responsibility. The provisions of the Postponement of Telecom Services (Public Emergency and Public Safety) Rules, 2017 must be reconstructed conferring the other laws at hand to check its constitutionality under which Internet suppression will be imposed. While the imposition of the internet shutdown, the fundamental right to internet access must be strictly followed. It is evident from the laws governing internet shutdowns and the Constitution of India that deferment of /telecom/Internet services/telegraph was anticipated only as a comeback to collective emergencies or in the scrutiny of public safety. Apart from this, whenever any unsympathetic circumstances occur commanding authorities initially inflicted internet shutdown in the name of so-called community distress. They do facilitate this without proper statistics and reasoning to the public at large. Perhaps, such a legacy and benefaction of government resulted in the contamination of the fundamental rights of the public. The maturation of the Indian economy and the speedy progress in information and technology have unlocked up enormous commercial opportunities and transmuted India as a comprehensive IT nucleus. There is no improbability that there are certain professions that are reliant on the internet. Such a right of profession concluded the internet also looks after consumerism and obtainability of excellent. Thus, the independence of merchandising and commerce done by the channel of the internet should also legally protected by our regime. So despite picking internet power cut as a cautionary law to place a stopover on untruthful data or Stories, protest, examination duplicitous administration ought to have other well-recovering substitutes to overwhelm from such complications.

This article is written by Paavni Thareja, a student of Raffles University and Sardha Malik, a student of Galgotias University

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