Internet suspension refers to the temporary or permanent interruption of an individual’s or organisation’s access to the internet (IFF, Report 2022). It involves intervention or restriction of internet connectivity and the associated services and privileges. These interventions include immediate downgrading or blocking of content and can be effective for hours or even months in certain regions or across the country. Governments have shut down access to internet at various levels in order to protect public order and national security. Internet has become an integral part of today’s economy and society and thus, the practice of rampant internet suspension is bound to be a reason of concern for any nation.
Several digital rights watchdogs and human rights organisations have expressed their concerns over the frequent practice of internet shutdown across India. As per the accessnow report, India ranks 1st in terms of internet suspensions in 2022. Moreover, the first six months of this year have already witnessed 73 internet suspensions, which has already exceeded the total suspension in the previous year. This signifies that the practice of internet suspension is becoming more frequent and thus, needs to be studied in detail.
This article attempts to shed light on the issue of internet suspensions, and its prevalence while highlighting the underlying legal mechanisms that support the same. The article eventually culminates with a brief outlook at its policy implications.
Legal Framework used to suspend the Internet
The legal regime regulating internet shutdowns has been subject to some scrutiny due to concerns about the need for strict safeguards, potentially due to ambiguous interpretation of the law, and enhancing accountability measures. Often there are debates which revolve around the potential misuse of the laws by centre as well as state governments. Still Colonial-era laws are being used to enforce internet shutdowns. One such statute being Indian Telegraph Act, 1885 (hereinafter referred to as ‘Act’) whereby the Indian Government is permitted to limit/temporarily suspend network services by taking recourse to Section 5(2) of the Act. The main objective enshrined under this act for such restrictions can be public emergency or public safety. However, a major lacuna in the Act is the use of ambiguous terms with no operational definitions.
Another law which is used to shut down the internet is the Code of Criminal Procedure 1973 (hereinafter referred to as ‘C.r.P.C’). Section 144 of the C.r.P.C gives wide authority to a District Magistrate (DM), a Sub-Divisional Magistrate (SDM), or state-appointed magistrate, to issue directives for the prevention and resolution of immediate danger or any law and order situation. Section 144 of C.r.P.C was/is frequently used by authorities to systematically shut down the internet, gives authority to the concerned District Magistrate (DM) to act immediately to stop obstruction, vexation, or injury to any person/authority lawfully employed, or if there is an apprehended danger to human life, health or safety, or if there is a disruption of public peace, or if there is a riot or an affray. During ‘circumstances of emergency, as determined by the District Magistrate, the provision permits magistrates to issue such orders ex parte-based on listening to just one party-without any built-in review procedure. These powers have the potential to be abused since they provide government authorities the freedom to halt internet access to maintain public order based purely on their estimate of likelihood of violence and without any sort of supervision or accountability.
Due to the lacunas in the Telegraph Act and unrestricted powers under Section 144 C.r.P.C there was a dire need for change and therefore the government promulgated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rule 2017 (hereinafter referred to as ‘Rules’). Most of the Internet shutdowns are regulated by the above-mentioned rules, which authorises the central or state government to direct-by means of a written and reasoned order-the suspension of telecom services in case of ‘public emergency’ or where ‘public safety’ is threatened. The Rules were enacted to better regulate the internet suspension instead they are decreed/ordered in an opaque manner, without any proper public consultation. Therefore, the government changed the regulations in November 2020 whereby the suspension orders were limited to 15 days. However, since the law only sets a limit on the length of each order and does not set a cap on the entire length of the closure, there is nothing in the Rules that prevents the government from enacting a new suspension order every 15 days. The government in 2022 passed the new Telecommunication Bill, 2022 (hereinafter referred to as ‘Bill’) which proposes to further increase the authority of the government to halt internet services. Section 24 and 25 of the bill intends to give the government expansive authority when it is “necessary or expedient” to do so “in the interest of national security, friendly relations with foreign states, or in the event of war”. The bill, if enacted, would give the government authorities power to impose network interruptions not only in case of national security and interest but also when they find a threat to international relations.
Obiter Dicta related to Internet Suspension
Internet outages can cripple telecommunication facilities, as was seen at the time of farmers agitation that took place at Delhi in 2021; landlines, mobile phones network, and internet services were completely shut down in certain protest locations to curb free flow of information and call for further protests. Time and again, state-ordered suspensions which silence critics and block access to information as provided in the report published by Human Rights Watch in 2020, have been challenged in the courts due to their impact on freedom of speech and expression, flow of information, and access to essential services like health, banking, etc.
One of the landmark cases pertaining to internet suspension is Anuradha Bhasin V. Union of India and Ghulam Nabi Azad V. Union of India (2020) 3 SCC 637, whereby the Hon’ble Apex court observed that suspension of internet as well as telecommunication services is a “drastic measure” that must be considered by the state only if it is “absolutely necessary” and “unavoidable”, after evaluating the “existence of an alternate less intrusive remedy”. The court endorsed proportionality as the standard to review internet restrictions but cautioned against excessive use in matters of national security, sovereignty, and integrity. In Banashree Gogoi V. UOI the Hon’ble Guwahati HC considered the role of internet connectivity in the day-to-day life of an individual and how suspension brings “life to grinding halt”. The court observed that even though various provisions of law permits suspension of internet services, that the conditions imposing the ban must be continually reassessed and looked upon, and services should be restored as soon as the law-and-order situation is under control. In Ashlesh Biradar V. The state of West Bengal the Hon’ble Calcutta High Court stayed a state government order to suspend internet services as a preventive measure. The court observed that the authority issuing the order was not empowered to do so under Section 144 of the code and that the order directing the same failed to pass the contours of proportionality test.
If the ongoing infringement of freedom of speech and expression via the internet is to ever be stopped, the judiciary must examine and investigate cases of internet shutdown by the centre or state governments using stricter and more adaptable regulations than those established in the aforementioned Anuradha Bhasin case. It is imperative that these limitations on citizens’ civil liberties be lifted, and that the fundamental right to internet access be established.
Consequences of Internet Suspension
Development of cyberspace and allied services have established an integrative ecosystem for individuals, communities, and organisations. Therefore, disrupting the internet ecosystem reduces the opportunities for individuals and businesses and can have a negative impact on the economy. Deloitte in its 2016 report titled “The economic impact of disruptions to internet connectivity” has analysed the economic impact of temporary disruptions to internet connectivity. The paper goes on to say that in a nation with a high level of internet connectivity, the daily impact of a temporary internet outage would be $23.6 million for every 10 million people. As a nation decreases internet access, the average estimated GDP impacts highlighted in the paper amounts to $6.6 million and to $ 0.6 million per 10 million population for medium and low internet connectivity economies, respectively. There were instances of shutdowns to prevent cheating during examinations in various districts of Rajasthan. The Internet Freedom Foundation in its report to the Rajasthan government in response to rampant shutdowns, has emphasised that leaving the legal concerns aside, the negative effects of these suspensions on economy, society, and journalism far outweighs any speculative benefits such as spread of mis-information or prevention of cheating during exams.
Internet shutdowns are now more frequently used to address non-emergencies situations like instances of government criticism by the general public. International human rights organisations and experts have called for governments to refrain from using internet shutdowns except in exceptional circumstances and with proper legal safeguards. They argue that governments should explore alternative and less drastic measures to address any legitimate concerns they may have.
Therefore, it has now become necessary for India to implement a coordinated policy that would reduce the use of internet outages as a means of enforcing law and order. It is necessary to put in place an appropriate system for determining if a shutdown is justified. The mechanism should set precise rules and procedures for their implementation. Establishing an appropriate system for determining if a shutdown is justified, along with clear rules and procedures for implementation, is necessary to ensure transparency, accountability, and protection of individuals’ rights.
India aspires to become a digitally inclusive society and knowledge economy however, internet shutdowns impose significant obstacles to this goal. Few years back, the central government launched the Digital India initiative which emphasises on increasing internet access in order to achieve digital inclusion. India’s experience with internet shutdowns, however, poses serious challenges to the initiative. The government has prioritised the delivery of critical services through digital schemes such as Aadhar, and it intends to develop an India Architecture (IndEA) framework to make services digitally accessible to all citizens via online, mobile, and common service centres (CSCs). To develop a cashless economy, contactless digital payment systems like e-RuPI are being encouraged. While having access to the internet is necessary for these projects to succeed, none of the policies have the necessary framework in place to deal with the issue of internet shutdowns. India’s ambition to replicate and even surpass the digital growth projections of many industrialised countries is commendable. The digital revolution has the potential to drive economic growth, enhance access to information and services, and empower individuals and communities.
In order to fully realise the potential of the digital transformation, it is crucial to have policies and frameworks in place that address the issue of internet shutdowns. To achieve this, firstly, declaring the use of the internet as a fundamental right is an important step towards ensuring digital inclusion and access for all. By doing this a sound legal framework can be established that protects individuals’ rights to access and use the internet also, governments can be held accountable for ensuring affordable and accessible connectivity for their citizens. This can help bridge the digital divide and empower individuals to exercise their rights to information, education, communication, and participation in the modern era. The idea of having internet access for everyone is indeed an achievable goal.
Secondly, it should be the responsibility of the government to ensure security is balanced against the rights to life, education, and work i.e. reasonable restrictions should be placed. Reasonable means which is backed with a reason behind it. For instance, limits or restrictions placed on a citizen’s ability to do business are termed to be reasonable when the restrictions are the result of thoughtful assessment and backed by clear application of mind behind their imposition. A fair restriction cannot be described as mere arbitrariness. Lastly, the basis for imposing shutdowns should be narrow, clear and unambiguous in nature. Order of the DM/government officials with respect to internet shut down should provide details and explanations as highlighted by various judicial decisions.
It is true that some states are becoming more comfortable with imposing restrictions due to concerns about the adequacy of enforcement authorities. This is often seen in situations where there is a need to regulate certain activities or behaviours for the safety and well-being of the public. In these cases, imposing restrictions can be seen as a necessary measure to ensure compliance and protect people from potential harm. However, it is important to strike a balance between imposing restrictions and respecting individual freedoms. Ultimately, the effectiveness of these restrictions will depend on a combination of enforcement efforts, public compliance, and ongoing assessment of their impact. Therefore, providing support and training to law enforcement authorities in handling law-and-order issues is important. Enhancing their capabilities can contribute to more effective enforcement of laws and regulations, reducing the need for extreme measures such as internet shutdowns. Publishing case studies on the effectiveness and costs of internet shutdowns can also be valuable. These studies can help policymakers and the public understand the impact and consequences of such shutdowns on society, including economic losses, disruption of essential services, infringement of individual rights, and overall social and political implications. This information can aid in making informed decisions and finding alternative solutions to maintain law and order while also safeguarding citizens’ rights and interests. Collaborative efforts between law enforcement agencies, government authorities, civil society, organisations, and technology experts can contribute towards achieving these goals, by sharing knowledge, best practices, and advocating for responsible use of technology and internet governance.