Internet shutdown and how it violates Right to Freedom of expression

The present article is written by Mudit Jain, pursuing B.B.A.LL.B.(H) from Indore Institute of Law.

Introduction

The internet, which has become an essential location and method of exercising an individual’s freedom and expression in the twenty-first century, has become one of the most vital elements of an average person’s everyday existence. It gives a fantastic and very accessible platform for the global exchange of ideas and knowledge without regard for time or place. It has grown so necessary that national and international organizations recognize it as a human right. However, in recent years, it has come under the severe and indiscriminate supervision of governments from all over the world. It is increasingly being targeted by state agencies and governments all around the world, and the number of internet shutdowns reported each year is growing.

According to the Software Freedom Law Centre (SFLC), a legal community that has been tracking internet shutdowns since 2012, 106 internet shutdowns were recorded in India in 2019. These frequent Internet shutdowns are a significant blow to citizens’ fundamental rights. Article 19 of the Indian Constitution guarantees us the right to free expression, which is severely infringed by internet shutdowns. The appropriate knowledge of Internet Shutdowns is required in order to have a better grasp of its influence on Article 19(1).

Internet shutdowns are when the government sets a restriction and prohibits the general population from accessing the internet by blocking the servers. These shutdowns can be implemented over the entire country as well as on a local level. In exceptional situations, it can even be extended indefinitely. However, access to the Internet has recently gained the status of a fundamental right, and such arbitrary internet shutdowns, in some way or another, openly violate the basic rights as well as numerous human rights of individuals who fall under its purview. They limit our autonomy, deny our free will, and undercut our freedom of speech.

Until 2017, several forms of Internet shutdowns were authorized under Section 144 of the Criminal Procedure Code of 1973. Section 7 of the Indian Telegraph Act was modified in 2017, resulting in the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017. These restrictions were first welcomed with the expectation of fewer shutdowns, but to the total astonishment of Indian residents, the shutdowns grew. It is still being used arbitrarily by the federal and state governments to suppress dissent, infringing on the right to freedom of speech and expression entrenched in Article 19(1) of the Indian Constitution.

Right to Internet: A Fundamental Right

There is no doubt that the freedom to disseminate information to the general public is protected by Article 19 of the Constitution (1). The Supreme Court and the High Courts have often emphasized the internet’s inclusion among the media of free speech and expression, as well as the duty of state and government to encourage such freedom. To preserve the democratic values of the constitution, freedom of speech and expression via the internet is critical, and any indiscriminate shutting down of the internet in order to stifle opposition against the state violates these objectives. The vast variety of information circulation and the enormous effect that the internet has on individuals cannot be used to justify restricting its access at the whims of government.

The use of Section 144 of the CrPC and the Temporary Suspension of Telecom Services Rules, 2017 has resulted in an increase in the number of internet shutdowns in various Indian states during the last several years. There has been harsh condemnation of such government arbitrariness, which serves as ample evidence that the Right to Freedom of Expression has recently come under scrutiny. In a country with over half a billion internet users, arbitrary measures restricting internet access not only cause discontent among ordinary citizens and worsen the situation for which such measures are implemented, but also have a negative impact on various aspects of trade and commerce in the country. In today’s digital era, a considerable number of trade and commercial activities, including stock market trading, online shopping platforms, and electronic payment methods, require internet access, and Internet restrictions result in significant losses for those involved as well as the economy whole.

According to research by the Indian Council for Research on International Economic Relations, the Indian economy lost more than $3.04 billion between 2012 and 2017 as a result of internet outages. With the number of shutdowns tripling in 2018 and 2019, there is growing dissent among the people affected by their infringement of freedom. Internet shutdowns, in addition to violating Article 19, also infringe the citizen’s right to life under Article 21 and the citizen’s right to information under Article 19. (1).

Need for Internet Shutdowns:

However, Article 19 (1) does not grant a person limitless access to the internet for the sake of freedom of expression. Such freedom of speech and expression is frequently utilized by dishonest and devious individuals to disseminate misleading news and propaganda. In such a situation, the installation of such severe limitations as internet shutdowns becomes inevitable. Article 19 allows for the restriction of a type of communication that counts as equal to “incitement”. Article 19 (2) allows for the imposition of reasonable restrictions on the freedom of speech and expression guaranteed by Article 19 (1), and this also applies to its exercise on the internet for the sake of social order and stability.

In some extraordinary circumstances, adopting extreme steps for the sake of people’s safety becomes the necessity of the hour. The internet, as a method of expression, may also be utilized for hate speech, further escalating the issue. Whether it’s the Delhi Communal Riots or terrorist actions in Jammu and Kashmir, the internet is a key source of misleading news and inflammatory messages. In the guise of Freedom of Expression under Article 19, the situation might deteriorate and lead to riots, necessitating limits on access to it.

To qualify as reasonable, the government’s limitation of internet shutdown under Article 19 (1) must qualify as an urgent threat under Article 19 (2), as well as pass the three-pronged cumulative test of transparency, legitimacy, and the twin tests of necessity and proportionality. Thus, speech and expression that supports violent and destabilizing actions and endangers state security via the internet are not protected under Article 19(1).

Internet Shutdown and Court Judgments:

The Supreme Court, as well as different High Courts, have expressed varying views on the validity of the Right to the Internet as a Fundamental Right of Citizens. The Kerala High Court held in Faheema Sharin R.K. V. State of Kerala case, where a student was expelled from the hostel simply because she protested against the hostel’s rule that prohibited the use of the internet and mobile phones, that the right to the internet is a fundamental right under Articles 19 and 21 of the constitution and thus cannot be violated arbitrarily. However, in the recent CAA-NRC demonstrations, the Delhi Police ordered the internet to be taken down in various places around the city, and the Delhi High Court dismissed all pleas against it and upheld it. Despite the fact that the protests in Assam became violent, and the Guwahati High Court, In Bansashree Gogoi v. Union of India, the court directed the authorities to quickly restore internet services while also taking reasonable precautions to limit the spread of provocative information over the internet.

On January 10, 2020, a three-judge panel of the Supreme Court issued a historic ruling in the matter of Anuradha Bhasin v. Union of India, establishing the right to the internet under Article 19. After hearing the case involving the internet shutdown in Jammu and Kashmir, the Supreme Court ruled that the right to free speech and expression, as well as the ability to carry on any profession or commerce over the internet, is constitutionally protected under Article 19. Any limitation, whether by internet shutdown or otherwise, must be in accordance with Articles 19 (2) and 19 (6) of the Indian Constitution. The court issued the following instructions in order to evaluate the legality of Internet shutdowns under Article 19:

Proportionality Test: The Supreme Court ruled that before using such drastic measures, the relevant authorities must consider whether the action is proportional to the goal to be achieved. The government should take the least intrusive action possible.
Order Publication: They also requested that the relevant authorities post any orders issued for the suspension of the internet, together with a full explanation of why such a shutdown was necessary, in order to maintain transparency.
Only in extreme instances: The government can issue such directives only in extreme conditions and in cases of urgency.

As a result, the court recognized the critical importance of this problem and issued the above-mentioned recommendations to strike a balance between the right to freedom and the government’s urgency. These tests and procedures must be implemented by the government in order for their activities to be justified and in the best interests of citizens. The arbitrariness with which internet shutdowns are conducted and enforced has already caused significant tension between the state and its inhabitants, and in order to have a stable and peaceful coexistence, the state must demonstrate legitimacy in its actions and guarantee that there is no arbitrariness.

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