Explained: What you need to know about rising internet shutdowns in India

Internet services in Uttar Pradesh's Lakhimpur Kheri were suspended for the second time last Friday. The suspension order followed tensions in the district after three cars, two of which were reportedly linked to Union Minister Ajay Mishra's son Ashish Mishra, rammed into a crowd of protesting farmers and killed eight people, including three farmers and a journalist, on October 3.

According to an internet shutdown tracker maintained by Software Freedom Law Centre (SFLC), so far in 2021 internet services have been cut off in 37 instances across several states in India. In 2020, the number of such suspensions rose to 129, compared with 106 in 2019. These actions coincided with the anti-Citizenship Amendment Act protests from late 2019, the Jawaharlal Nehru University students' protests of early 2020 and the ongoing farmers' protests.

The Lakhimpur Kheri incident has again brought to light the issue of suspension of internet services by the authorities at times when communication becomes the key to tackling fake news and disinformation, and managing the events of unrest.

The Supreme Court (SC) in 2020 had declared access to the internet a fundamental right by expanding the scope of article 19 (1) (a) of the Indian Constitution, which guarantees the right to freedom of speech and expression. As such, the frequency with which the internet is banned in India has raised a number of questions regarding the legality of internet ban orders.

Mid-day online spoke to Prasanth Sugathan, legal director, SFLC and Tanmay Singh, litigation counsel, Internet Freedom Foundation (IFF) to understand the laws and rules which govern internet shutdowns in India and whether people have any remedial measures against such suspensions.

What does the law say?

The Telegraph Act of 1885 lays down rules for suspension of any form of communication in cases of public emergency under section 7, that is the Temporary Suspension of Telecom Services Rules of 2017. At the Central level, the internet shutdown order is issued from the Ministry of Home of Affairs and at the state level, the order is issued by the Secretary to the State Government in-charge of the Home Department.

The government can also issue a suspension order under section 144 of the Code of Criminal Procedure (CrPC) in cases of public emergency and a law or order situation.

According to the telecom suspension rules, the reason for issuing a shutdown order must be provided in writing to the concerned state or the Central departments and a review committee must be set up to check if these reasons are valid enough for suspending the internet. The committee has to submit its findings in five days, the entire process requiring almost a week to ensure everything is happening in accordance with the rules.

In 2020, the SC had laid down stricter rules in the Anuradha Bhasin vs Union of India case. In 2019, Anuradha Bhasin, the editor of Kashmir Times had moved the SC petitioning against the suppression of media freedom in Kashmir following the abrogation of article 370 of the Indian constitution.

The top court stated that the government must provide a ‘reasoned order' in cases of unavoidable circumstances, defining the necessity of a particular suspension order or an unanticipated internet shutdown.

Two other important points that the SC had stated were the ‘proportionality principle' and ‘temporary suspension'. The apex court observed that a communication shutdown must be done in such a way that it affects the least number of people, only in regions where it is absolutely necessary and communication cannot be suspended for a long time or permanently. Second, the review committee has to meet within seven days and review the situation in order to check if things can get back to normal.

The court said that while issuing shutdown orders, the government must follow these rules and cannot use it whenever it seems fit, especially to suppress public opinion and dissent.

Jammu and Kashmir has witnessed the highest number of internet bans - 315 of the total 544 suspensions - since 2012. This image is from the time when 2G internet services were restored in Kashmir. Photo: iStock.

How have the shutdowns been coming about in practice?

"Orders suffer from various infirmities. For example, orders are often issued by officers that are not authorised to issue internet suspension orders, such as District Magistrates or Divisional Commissioner, whereas only the Secretary, Home or an authorised officer not below the rank of a Joint Secretary are empowered to issue suspension orders," notes Tanmay Singh, litigation counsel, IFF.

According to Prasanth Sugathan of SFLC, passing an order under section 144 of CrPC allows the government to bypass the relatively stricter regime under the telecom suspension rules and that the above-mentioned review committees are usually not constituted. Thus, when the executive does not follow the procedure mentioned, citizens lose out on the safeguards provided by the rules, he says.

"The safeguards read out under the Anuradha Bhasin judgment are not followed by the state executive when the order is being passed. The judgment added the requirement of publication of the order of suspension, as non-publication is a violation of principles of natural justice. However, even after a year of the judgment, very rarely do the executive authorities publish these orders," the expert notes.

"Additionally, although public emergency is a necessary condition for a shutdown to be imposed, there have been instances of shutdowns being imposed to prevent cheating in exams. The Rajasthan High Court had held in Dhirendra Singh Rajpurohit vs State of Rajasthan case that a shutdown cannot be imposed to prevent cheating in exams, despite which another shutdown was imposed recently," observes Sugathan.

Are there loopholes in the law? How can they be addressed?

While the central and the state governments do have the provision to issue internet suspension orders meant to deal with an emergency such as a threat to the internal security, experts point out the vagueness and unclear meaning of the phrase ‘public emergency'.

"The justification of an internet shutdown is always sourced to justifications given under section 5 of the Telegraph Act, which are public emergency and public safety. However, these two terms are not defined in the act. This allows the state executive to act in an arbitrary manner as there is no guiding principle within the act itself," says Sugathan.

Another concerning point is the constitution of the review committee, which is made up of members from the executive itself, resulting in a conflict of interest. According to Sugathan, such a committee should comprise independent members for better representation and for an unbiased review.

Experts also stress on following the Anuradha Bhasin judgment, the non-compliance of which is one of the major reasons for arbitrary exercise of power by the authorities under section 144 of the CrPC.

"A major concern relates to the communication of the Supreme Court guidelines down to executive officers that are in-charge of issuing internet suspension orders. For example, the Meghalaya government's response to an RTI application filed by the Internet Freedom Foundation revealed that the Meghalaya government was not even aware that the Supreme Court had passed any guidelines regarding internet suspensions," Singh observes.

What remedial measures does the general public have?

"All internet suspension orders are liable to be challenged by invoking the writ jurisdiction of the Judiciary. For this, the timely and effective publication of internet suspension orders is essential. However, governments are able to defeat this requirement by publishing the order belatedly, or by hiding the order in a difficult to access web page, or in some instances by not publishing the order at all," Singh says.

According to Sugathan, citizens can file a petition under article 226 of the Constitution of India in the High Court, but as most of these shutdowns are of shorter duration, by the time a citizen approaches HC, the shutdown would have been lifted.

In case of a monetary loss due to an arbitrary internet shutdown such as in trade, the government can be made liable to compensate the person who has faced loss. However, the remedy seeking procedure can end up being longer than the shutdown duration.

When asked whether internet shutdowns help in achieving anything in public interest, Sugathan says, "The most common reason provided by the government for imposing a shutdown is to prevent dissemination of rumours compromising public safety. However, such a measure is only counter-productive as it causes panic among people. Instead of imposing a shutdown to curb misinformation, the government needs to use the internet and other channels to provide the right information."

Also Read: Why Indians should be concerned about online surveillance and privacy