Open Access Research Article
THE PARADOX OF PREVENTION: INDIVIDUALISTIC ASPECT OF INTERNET SHUTDOWNS
Published Paper
Article Details
THE PARADOX
OF PREVENTION: INDIVIDUALISTIC ASPECT OF INTERNET
SHUTDOWNS
AUTHORED BY - HARSH ENANIYA,
ASSISTANT PROFESSOR,
ABSTRACT
Contradictory to the
Government’s promotion of a digitised
ecosystem that prioritises the use of the internet
and its services under the banner
of ‘Digital India’, India has been labelled as the ‘Internet Shutdown
Capital’. This label owes its credit to the frequency
of internet shutdowns in the country over the past few
years. While dependency on the internet has been induced upon the people through incentives by the Government of India, the authority
has evidently been swift in depriving the
people of utilities provided by the internet.
The government has escalated control
over the medium
to a point where it renders the internet and its services temporarily
dysfunctional for the protection of ‘National Security’
and ‘National Interest’ on the
mere speculation of emergency. While fulfilling its responsibility to avert situations that threaten national
security, the government
falls short in preventing the infringement upon an individual’s internet access rights. The ambiguity
in the domain provides ample space for arbitrary
use of shutdowns as a tool to camouflage any agitation into obscurity merely on flimsy
grounds of speculation. The pondering question is whether, in the absence
of requisite parameters, such a subjective assessment
of a circumstance would adequately justify
imposing restriction over internet access to a considerable size of population? Moreover,
whether shutting down of the entirety of internet services
is justified, when the circumstance demands restriction upon a mere section
of such internet services? The paper attempts to argue that while curtailing the escalation of any matter in the name of national
security is paramount and justified, it cannot be carried out while there exists a subjective assessment of a circumstance due to lack of defined parameters. The paper
argues that the consequences of
internet shutdowns, coupled with international recognition of internet access
as a basic human right, should prompt India to consider
this recognition domestically. The article attempts to put
forth that the right to access internet
must be recognised and the power to deprive people of internet must be used justifiably and sparingly. Moreover, the shortcomings of the Indian Telecommunication Draft Bill, 2022 are discussed, including the lack of data maintenance, the potential failure
of shutdowns to achieve
their purpose, ambiguity in the term ‘public
emergency’, and the practice of shutting down the entire
internet.
Keywords: Digital India, Internet,
Internetshutdowns, National Security, National Intersest.
INTRODUCTION
In light of the introduction of the Indian Telecommunication Draft Bill, 2022,[1]
opinions have been earmarked by people and experts alike. A matter of perpetual debate has been
reinstated in modern discourse, which is that of Internet
Shutdowns. In the Bill, the legislative intent
of providing powers to the
state to curtail internet access has been made
glaringly obvious.[2]
After the intervention of the Supreme Court of
India in the matter, through the case of Anuradha Bhasin v. Union of India,[3] it was expected that the legislature would approach the topic of instating internet
shutdowns with mild restraint and thoughtful consideration. However, the same has not
been the case. In addition to this, the 26th report of the Standing Committee
on Communications and Information
Technology, which pertained to ‘Suspension
of Telecom Services/ Internet and its
Impact’,[4] reported
that the suspension of telecom services/internet was an excessive
action with substantial repercussions for the general public. The government had
failed to sufficiently justify the
suspension, lacking evidence of its necessity to prevent turmoil. It resulted in an economic upheaval and
hindered access to vital services
like healthcare and education. The findings of
the report have not been considered or accounted for in the draft bill either.
The implications arising from this omission within the draft bill is reflective
of the lack of governmental accountability.
While the draft bill in its entirety
has garnered a polarising response
for several other factors too[5],
the focus on internet shutdowns has been rather
specific. India has showcased to the world its dedication to create a digital reality.[6] It
has campaigned to promote digital technology and innovations at every front, whilst promising to create a cyberspace with
internet and interconnectivity at its core.[7] In
light of the circumstances of the
Draft Bill, not only does such a campaign seem imperatively hypocritical but also reflects the inability of the State to understand the gravity of why the internet is needed
as a right.
The purpose of this paper, therefore, persists in multiple aspects. This paper examines the reasons for government-initiated internet
shutdowns, focusing on India. It first defines the scope of an internet shutdown,
including methods like website blocking
and network throttling. It highlights the reasons like
national integrity, security, incitement of offence,
and public order justify shutdowns.
The paper presents statistics on
India’s frequent internet shutdowns, particularly in Jammu & Kashmir, and their negative impact on economy and society. It discusses the legality of
shutdowns under Article 19 of the Constitution
and questions whether the right to internet access should be recognized as a fundamental right, considering
its importance in various aspects.
It highlights the shortcomings of the Indian Telecommunication Draft Bill, 2022,
whilst highlighting the international recognition of internet access as a basic human right.
NEED
FOR INTERNET SHUTDOWN
In order to comprehend the reasons behind
the government’s emphasis
on implementing internet
shutdowns when necessary, it becomes crucial to define the scope of internet
shutdown, identify the factors that may lead to a shutdown,
and assess the frequency of such occurrences.
1.
Meaning of internet shutdown
In discussions concerning internet shutdowns, it is imperative to go beyond the literal interpretation and
encompass broader implications. While
the direct meaning is frequently emphasized, acknowledging these extended dimensions is essential for a comprehensive understanding of the right of internet freedom to the extent of
averting shutdowns.
In contrast to conventional media, the internet does not function as a broadcaster or a distinct
entity; rather, it serves as a medium.
Individuals utilize this medium to exchange information of diverse nature.[8] Therefore, in the context
of internet, the term shutdown pertains to restricting the flow of
information through this medium. While the literal
translation is explicit in implying that the term Internet
Shutdown refers to the suspension of the functionalities and services of the
internet, the ambit of the term extends beyond its literal meaning.[9] In
its practical application, the term also encompasses the blockage of specific websites as well as throttling
the network speed to function at a lower
rate of transfer. The
latter is done to impede
the speed at which
information can be transferred through the medium and not inhibit the transfer entirely.[10] In Anuradha Bhasin, the Supreme Court had considered these methods of internet
shutdown as less intrusive in comparison
to a blanket ban.[11]
Therefore, any reference to internet shutdowns,
in the course of exploring the right to internet, must also acknowledge these methods.
2.
Justification for internet shutdowns
Pursuant to the powers given to the State, national integrity, security, inciting
of offence and public order are domains within which an internet
shutdown can be instated and enforced.[12] The emphasis in this regard is mainly upon the term public order because, owing to its significantly large ambit of
understanding, others are derivatives from
the very meaning of the term.
At the level of the Supreme Court, J. Subba Rao has remarked that “public order is synonymous with public peace, safety and tranquillity.”[13]
In the same judgment, J. Hidayatullah has remarked how public order must occupy a seemingly larger circle over
national security, if they were to be represented in concentric circles
of priority.[14] Much in the same line of thought,
disorders of law and order pertain
to having less significance than that of public order.[15]
Despite the fact that J. Hidayatullah’s view of concentric circles
was eventually discarded,[16]
the deduction worth retaining from this interaction is how the focus upon public order must supersede other factors, as disruption of public order would inescapably result in compromising security and integrity.
For the purpose of understanding the meaning of public order in the context
of internet shutdowns, the Supreme Court has recently
employed the following
analogical representation:
“If two families
quarrel over irrigation water, it might
breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order
situation.”[17]
The connection between public order and the internet is derived from the belief that the internet, with its
endless potential, is a primary tool for
spreading information that can be used to mobilise and militarise people in any volatile incident.[18]
Moreover, given the sheer volume of information that is conveyed in a given period of time, it is not feasible
for violence inciting,
conspiracy spreading and militarising messages to be filtered and removed from the flow of digital
conversation. Therefore, the act of internet
shutdown precludes the commission of the act itself and is preventive in nature.
On the contrary, when public
order has already
been disrupted and the focus of the authorities is to de-escalate and prevent any further violence, internet shutdowns
are resorted to in the same manner
but in a different light. The nature
of such shutdowns is therefore reactive. It is in direct response
to an act of disrupting public order which is either on-going
or has been completed. The major belief
with regard to such imposition is that by depriving the
medium of communication, either the
information inciting the act would be
prevented from getting accessed
or no information would reach out, so as to curtail the matter. Hence, with regard to such shutdowns, it
is imperative that the nature of the lockdown remains
dynamically responsive to the circumstances.
3.
Statistics around internet shutdowns in India
Having initially garnered recognition for its endeavours to digitize the nation
ahead of developed western counterparts, India’s
reputation has been tainted by its frequent imposition
of internet shutdowns, leading to the
unfavourable label of ‘The Internet Shutdown Capital of the World’ and attracting nation. From mere 3
internet shutdowns in 2012 to
peaking at 135 shutdowns in 2018, India’s intolerance towards the right to internet access was visible in
the passage of the last decade.[19] What can be traced alongside this statistical increase
in lockdown is the increase in the number of internet users
in India as well. Post-2016, India
has seen a rise in the number of internet users.[20]
Currently, India has 658 million active internet users, which amounts to 47% of the population.[21]
It is also the second largest in terms of population that is online,
behind only China.[22] The place with the most frequent internet shutdowns is the
state of Jammu & Kashmir where 415
shutdowns have been imposed, or 61% of the total shutdowns in India.[23]
India has also ranked as the country with the most internet shutdowns for 2018, 2019, 2020 and 2021.[24] Out of the total shutdowns in India till 2020,
only 93 lasted under 24 hours.[25]
The longest internet shut down
in history was also in Jammu & Kashmir, where 552 days went by between
4th August 2019 till 6th February 2021, as the territorial matter was finally resolved
when Jammu and Kashmir was formally acknowledged and retained within the territory of India.[26]
Progressively over time, the Indian economy has become intrinsically reliant upon e-commerce and various other
e-services. It is because of this
reliance that India reported a loss of 2.8 billion dollars in 2020 for 8,927 hours of shutdown in total.[27]
As a proportionate record, it was reported
that the sum was twice as much as what 20 countries next to India lost, combined.[28]
The statistical evidence presents a very deplorable image of India. Not only are shutdowns leniently imposed,
but there also exists no forum for
accountability as the state is rigid and dismissive. For a measure as extreme, the emphasis must be on using
shutdowns only as a matter of last
resort[29]
which seems to have been missing from the continuous impositions. As stated by Justice N.V. Ramana in the Anuradha Bhasin case, the repetitive orders
under Section 144 of the Code of Criminal Procedure,
1973 (hereinafter, “CrPC”) would
amount to abuse of the powers
provided by the aforesaid section to the Executive Magistrate.[30]
LEGALITY OF INTERNET SHUTDOWNS
1.
Internet access within the meaning of Article 19
While the internet is merely a medium meant for utilisation by the population, the purpose for which such
utilisation is made should be discussed.
Conversations, exchanging of knowledge and dispersing of information are primarily
carried out by the means of internet.
Therefore, permitting the continuation of the internet as a medium essentially grants the right to freedom of
speech and expression, as provided under Article
19.
For any discussion with regard to internet shutdown to persist, the acknowledgement of Article 19(2) is imperative. Article 19(2) provides the scope or the law to intervene and
restrict the freedom of speech provided under Article 19(1)(a).[31] The text provided
under the aforesaid
Article states, that:
“Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent
the State from making any law, in so
far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub
clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to
an offence”[32]
In the context of internet shutdowns,
if freedom of speech of the citizens
is to be curtailed by restrictions, the Article mandates that it must be done by a procedure established by
law. The emphasis laid in the above text is upon the existence of a law which imposes reasonable
restrictions. Pursuant to the relevant sections under the IT Act,
2000, the CrPC and the Telegraph Act
and Suspension Rules, 1885, internet shutdowns
are imposed in India, thereby fulfilling the criterion of a procedure
established by law.
Additionally, the necessity of a reasonable
restriction is paramount in the
eyes of law. For any internet shutdown to be held constitutionally valid within the consideration of Article
19, it must confer to the test of
reasonable restriction, such that, the restriction which has been imposed upon the citizen as a consequence
of the internet shutdown must be reasonable in the eyes of law.
As established in State of Madras v. V.G. Row, the
procedural aspect of this test
of reasonableness involves
checking 5 domains:
·
Determination of what right has been alleged to be infringed.
·
The purpose
for which the restriction was imposed.
·
The extent
and urgency of the evil sought to be remedied.
·
The disproportion of the imposition.
In Shreya Singhal v. Union of India, it
was held that restrictions can be deemed acceptable only if they were “narrowly tailored.”[34] Meaning
thereby, that the restriction must be precise and clear as to what it wishes to achieve and the action of the
state with regard to imposing the restriction is reasonable only to the extent of achieving the aim it set out to accomplish. The constitutionality of a statue cannot be questioned on the ground
that it imposes a restriction against
the entire public.[35]
In subsequent cases, however, the judiciary has diluted its stand on this regard by stating that “less restrictive but equally effective alternative” must be considered adequately before imposing any restriction upon freedom of speech.[36]
In applying the aforesaid test of reasonable restriction, internet shutdowns
have been upheld by the judiciary in Anuradha Bhasin.[37]
2.
Right to internet access as a fundamental right under Article 21
For the time being, Right to Internet Access is not a fundamental right guaranteed by the Constitution under any
article, as per the Supreme Court of India. However,
in prior precedents, only way the constitutionality
of internet shutdowns has been questioned is within the ambit of violation of freedom of speech guaranteed by
Article 19. Despite the ruling of the
Kerala High Court in Faheema Shirin R.K.
v. State of Kerala[38]
where the Right to Internet Access was held to be a fundamental right, owing to it being a subset within Right to Education and Privacy under Article 21 of the Constitution, there has
been no affirmation in this regard by
the Supreme Court. The judgement of the Kerala
High Court can be suggestive in this regard, but it cannot be held binding upon other courts of law.
Moreover, the material facts of the case in Faheema Shirin are extremely different from that of internet shutdowns imposed by the State.
While adjudicating the matter of Anuradha
Bhasin, the Supreme
Court bench explicitly
denied recognising right to internet access as a
fundamental right, while citing that neither party had argued in that regard.[39] The court, however,
affirmed that speech
and trade conveyed
through the medium of internet
fall within the protection of fundamental rights
and as such, are unalienable.
In the aforementioned cases, the consideration for Right to Internet as a fundamental right emerges from the
viewpoint that limits it to being a
mere tool for speech, knowledge and expression. The constraint of acknowledging the right as developing from
Article 19 is that it sees the
internet only as a way to share ideas and opinions. However, the internet is not just a medium for
expression; it has evolved into a complex
ecosystem that includes education, commerce, information sharing, innovation, social interaction, and more. Therefore, if
internet is perceived
to solely act as a means of communication, its multifaceted role and broader
importance in the society
would be overlooked. Therefore,
to accommodate such a complex ecosystem, there exists a need to acknowledge internet as an inherent subset to Right to
Life as guaranteed under Article 21, and not as a mere tool for expression.
THE NEED TO RECOGNISE THE RIGHT TO INTERNET ACCESS AS A FUNDAMENTAL RIGHT
1.
Consequence of internet shutdown
With regard to internet shutdowns, the years the government has spent in promotion of a digital India seems
hypocritical. The inability to recognise access to the internet as a fundamental right, while encouraging people to use and derive benefits
from the internet seems contradictory.[40]
The problem of internet shutdown would not have invited such harsh criticisms and intense debate, if people were
not dependent upon the services
and functionalities of the internet. The problem exists in the promotion of a digital environment,
creating dependency on the digital
environment and then depriving people of the
digital environment.
The direct outcome of internet shutdown is reflective in many aspects. The inability to transact, disconnect
from a remote job and the digital divide
in the field of education are some out of many problems that have plagued India during Internet Shutdowns. For instance, it has been reported
that lack of accessibility to education has been a fundamental issue
in regions where shutdowns have been implemented for a prolonged
period of time.[41] Similarly, shutdowns having induced
migration and social disconnect, has caused a great loss of jobs.[42]
The embedding of internet in the lives of people
to such an extent, warrants
a consideration that internet is an integral part of life. A variety of ancillary rights like the right to
information, right to employment and right
to education are directly cumbered by the imposition of internet shutdowns. In a digital
age, such rights
flow from the interconnectivity of internet. Therefore, internet cannot
be considered as a mere right flowing
from Article 19 but a right stemming from right to life under Article 21 itself.
The agitations against lockdowns stem also from the fact that while depriving
people of internet,
the object sought
by lockdowns has rarely been met. Research
has shown that the mobilisation rate of people increases significantly more upon the imposition of internet shutdown, than without it.[43]
2.
International recognition as a basic
human right
When the internet has grown to be such an integrated part of human life, there exists no reason why it should
not be recognised as a basic human
right in India. As early as 2016, the UN had made its bid to include
the right to internet access
as an unalienable right of humans.[44] While not binding
in nature, it was reflective of the global acknowledgement
of the need for internet as a basic necessity. The same has been recognised by various
countries.[45]
Moreover, the United Nations Human Rights Council has denounced practices involving the filtering of
online content, the employment of communication
‘kill switches’, which entail the complete shutdown of communication systems, and the forcible
seizure of broadcasting stations. The council has remarked that such measures can never
find justification under the domain
of Human Rights Law.[46]
Furthermore, in a Resolution passed
by the Human Rights Council in 2016, there is
a clear condemnation of deliberate actions by States that aim at obstructing or interfering with the availability or spread of information on the internet.[47] The Resolution has urged all countries to avoid and halt
such actions which goes against
established principles of International Human Rights
Law.
Various states across the globe have expressed
their commitment towards formulating an inclusive,
people-centric and development- based
society where information is paramount and accessibility to information, to create, to utilise and to
share are common features.[48] The UN Millennium Declaration, in
consonance with this view, has prioritised the accessibility to Information and Communication Technology and has envisioned a society
where such accessibility reaches all.[49]
There has been a call for policies that advocate, promote and promulgate the need for internet access universally.[50] The members making
such demands are mostly European
and other western
countries, who have not only adopted a progressive viewpoint but also incorporate an inclusive agenda.
The decentralised nature of the Internet
has often led to the belief that Internet is not merely an access tool present within the territorial
bounds of a country, but is rather an inexhaustible
resource shared and protected by all people in the world alike.
The Report of the Special Rapporteur on the Promotion
and Protection of the Right to Freedom of Opinion and
Expression concluded that while
limitations placed on the internet often involves justifications related to national security or public
order, they frequently lack the essential evidence
to support their legality, necessity, and proportionality.[51]
SHORTCOMINGS OF THE INDIAN TELECOMMUNICATION
DRAFT BILL, 2022
In light of the agitations, confrontations and protests
regarding internet shutdowns, the legislature was expected to undertake an overhaul in the area of digital space and cyber law.
Catalysed by the Supreme Court’s decision
in Anuradha Bhasin, a change in the
scene was expected insofar as
internet shutdowns were considered.
These speculations were further fuelled by the lower number of internet shutdown
cases in 2022 compared to that of 2017.
However, with the introduction of the Indian Telecommunication Draft Bill, 2022,
this trajectory of hope has seen a downward slope. It was expected that the legislative intent would
be more accommodative of internet
shutdown alternatives however, the matter remained
unaltered. Rather, by
expansive definitions, the draft bill has tried to accumulate a wider variety of digital elements within
its control. Should the draft bill
pass, social media sites like Twitter and Facebook would fall directly
within the ambit of control
of the Government.[52]
Apart from the aforementioned, the following concerns
with respect to the
Bill remain unaddressed:
1.
No maintenance of data by Ministry
of Home Affairs
For the proper assessment of a law, it is imperative that adequate information is available to the public
regarding its impact on them. Only
then can a conclusion be drawn and the effect of the law be known. It is based on such knowledge that
the law can be allowed to persist,
amended or discarded. In the matter of internet shutdowns, the Ministry of Home Affairs (MHA) has responded to queries admitting that they do not have the
requisite figures.[53]
In the absence of such figures, the formulation of a bill let alone the functioning of the current
law in place can be disastrous.
Informal sources have to be relied upon to even trace the statistical happenings around internet shutdowns.
Similar responses have been given by
representatives of Government of Delhi and of Bihar. It is representative of a disconnect between the
issues of the public and the priority
of the people in power. Despite public outcry and the sheer number of people affected, the Draft Bill
in question fails to provide any compulsion for the maintenance of such data.
In the evaluation of
effective legal frameworks, transparency and comprehensive data are pivotal for gauging
their impact on the public. Without access
to adequate information regarding
the consequences of a
law, the assessment of its efficacy remains incomplete, impeding the informed decision-making process of
whether to uphold, revise, or discard
the law. The lack of the necessary figures to quantify the outcomes
of internet shutdowns
underscores a deficiency in the policymaking process. The reliance on
informal sources to ascertain statistical occurrences surrounding internet shutdowns
and similar acknowledgments by representatives of
various government entities, highlights
a disconnection between the concerns of the public and the priorities of the government.
2.
Internet shutdown failing
to achieve its purpose
Due to the lack of available data, the success
of internet shutdowns has not been determined
with certainty. While internet shutdowns have
been implemented for the
purpose of preventing mobilisation and impeding imminent violence,
a paper from Stanford University suggests that internet
shutdowns might actually
help in mobilizing crowds more than they would have if they were left alone.[54] The paper tracks and utilises published information
to formulate a chart, which then helps show how violence proceeded to happen in more cases after the imposition of shutdowns than in the
ones where no shutdown was imposed.
The findings of the research have some practical credibility as in the case in Burkina Faso and Uganda,
rather than quelling
dissent and silencing young
people who utilize social media for mobilization against oppressive political structures, internet shutdowns
evidently sparked even stronger resistance
and violence.[55]
Furthermore, there is no concrete
evidence supporting the fulfilment of the purpose
of internet shutdowns. On the contrary,
in the Report of the Office of the United Nations High Commissioner for Human Rights
in 2022, a specific
reference was made with regard to the enormous
collateral damages that are caused
by internet shutdowns, beyond their intended
purpose.[56] In a state
of chaos, shutdowns
can severely impede
vital communication channels,
disrupting the flow of essential
information and hindering the coordination of emergency response efforts.
The absence of reliable news coverage during
critical moments may give rise to public panic, as people
are left in the dark about ongoing
events and developments. Moreover, these shutdowns can inadvertently create an environment where misinformation
flourish unchecked, further fuelling the confusion and chaos.
3.Ambiguity within the meaning of the term ‘Public Emergency’
While it has been established by the judiciary that any act that wishes to promulgate a restriction upon the freedom
of speech of an individual must proceed in doing so only when in a state of urgency or emergency,[57]
there still exists an unanswered ambiguity as to what degree of severity of an event would comprise as emergency. While it is factual that disruption in public order would
invite action, this action cannot always result in curbing the right
to freedom of speech of the individual,
while less severe alternatives would preferably help fulfil the same
aim.
In the Report of the Special Rapporteur on the promotion
and protection of the right to
freedom of opinion and expression, Frank La
Rue, the utilization of a vague notion like national security to validate intrusive restrictions on the exercise
of human rights has been discussed
as a matter of significant concern.[58]
According to the report, this
broadly defined concept of national security is susceptible to manipulation by the government, enabling it to justify actions
targeting marginalized
groups, including human rights defenders, journalists, and activists. Moreover,
it facilitates unnecessary secrecy in investigations and law enforcement,
undermining transparency and accountability principles.
It cannot be denied that at times of intense chaos, internet shutdowns might be sought by the legislature as a
last resort. However, what criterion
or criteria is to hold a circumstance worthy of imposing an internet shutdown is still unknown. While
an objective answer cannot be sought,
owing to the differences in each case, there still must exist a set of parameters that can be referred to determine the severity of the
case. The Draft Bill in question provides no supplement to aid such determination.
4.
Shutting down the entirety
of the internet
In General comment No. 34 (Human Rights Committee), paragraph 3 highlights that freedom of expression is
an essential prerequisite for upholding
the principles of transparency and accountability, which are fundamental for the safeguarding and
advancement of human rights.[59] Paragraph 43 states that any limitations
on websites, blogs, or other internet-based information dissemination systems, as well
as their supporting components like internet service
providers and search engines, must be in harmony with the stipulations of paragraph 3. Such allowable constraints should primarily
pertain to specific content, as broad
prohibitions on certain sites or systems contradict the principles outlined in paragraph 3.[60]
Therefore, insofar as violation of human rights are concerned, the international perception is that broad
prohibition of internet must be avoided.
Though the aim of internet
shutdowns is to curb the flow of information, in order
to restrict mobilisation and militarisation of people,
the same can be achieved while only suspending a fraction of the total available Internet services. If
the ability to communicate is what
causes people to plan and formulate their malicious intents, as acknowledged in the Anuradha Bhasin case, affecting the functioning of other essential elements of internet
services is violative of human rights.
By suspending internet
services insofar as access to websites is concerned, while whitelisting important features like payments, the aim sought would be achieved while merely
denting the interest of the innocents.
For this to happen, however, the legislature, by its implicit action, would have to informally consider
the internet as a basic right and recognise it beyond just the ambit of just Article 19. The Draft Bill in question fails to
accommodate such a provision.
WAY
FORWARD AND CONCLUSION
Instead of embracing alternative solutions to internet shutdowns, the Indian Telecommunication Draft Bill, 2022, through expansive
definitions, seeks to exert greater control over various digital
elements of the cyber space. It fails in bringing
about the anticipated accountability and transparency insofar
as restraint over internet access
was concerned.
While there currently
exists a lack of acknowledgment by the legislature of the embedded nature of
internet in our day-to-day life, it is
inevitable, optimistically, that the individual’s view of what internet functionalities comprises of would be
thought of, accounted for and adequately
envisioned by the government in the
modern day. It is necessary to
discard the perspective of internet as a mere medium of communication in the light of all the functionalities and
utilities that are derived form it on
a regular. The power to curtail internet and its reach is a power that must be possessed with caution.
Transparency with regards
to shutdowns is desirable. Accountability must be demanded in the form of the government’s
acknowledgment of the plethora
of inadvertent consequences that internet shutdowns may have over the day-to-day life of individuals.
In the era of digital interconnection, it is impossible to alienate the internet from humans and humans from the internet. The soundest way of going about human evolution is to accept our dependence on technology and the internet. The first step in that domain would involve
acknowledging the interdependence of internet with human life both socially and legally. In light of the developing collective consciousness in favour of the internet, suitable alternatives would be relied over strict
imposition of shutdowns
in the future.
[1] ‘Indian Telecommunication Bill, 2022’,
[2] GS Bajpai and Saurabh Sharma, ‘Demystifying the Draft Indian
Telecommunication Bill, 2022’ (2023) SSRN Electronic Journal.
[3] Anuradha Bhasin
v Union of India (2020) SCC Online SC 25.
[4] Standing Committee on Communications and Information Technology (2021-22), Ministry of Communications (Department of Telecommunications), 17th Lok Sabha
[5] Soumyarendra Barik, ‘Draft Telecom Bill: Negative impact on digital ecosystem, say tech companies’, The Indian Express (Mumbai, 12 November 2022).
[6] Shashi Shekhar
Vempati, India and The Artificial Intelligence Revolution (Carnegie Endowment for International Peace 2016).
[7] Saket Modi, ‘India in 10 years: Cyberspace, the new frontier’, LiveMint (3 February 2022).
[8] ‘How does the Internet work?’ (Cloudfare),
www.cloudflare.com/learning/network-layer/how-does-the- internet-work/> accessed 13 August 2022.
[9] Steven Feldstein,
’Government Internet Shutdowns
Are Changing. How Should Citizens and Democracies Respond?’ (2022) Carnegie Endowment for International Peace
shutdowns-are-changing.-how-should-citizens-and-democracies-respond-pub-86687 > accessed
13 August 2022.
[10] Cassondra Mix, ‘Internet Communication Blackout: Attack Under Non- International Armed Conflict?’ (2014)
3 Journal of Law & Cyber Warfare 70, 70-102.
[11] Anuradha Bhasin
v Union of India (2020)
SCC Online SC 25.
[12] Diksha Munjal, ‘In India, are internet shutdowns in accordance with law? Not always’(newslaundry, 29 October 2021)
[13] The Superintendent, Central Prison, Fatehgarh v Ram Manhar
Lohia AIR 1960 SC 633.
[14] Ibid.
[15] Kuso Sah v State of Bihar (1974) 1 SCC 185.
[16] Madhu Limaye v Sub-Divisional Magistrate, Monghyr (1970) 3 SCC 746.
[17] Anuradha Bhasin v Union of India (2020)
SCC Online SC 25.
[18] Outlook Web Bureau, ‘Fundamental
Right: All You Need to Know About Longest Internet
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[19] Info at https://internetshutdowns.in/.
[20] Tina Gurnaney, ‘Estimated internet penetration in India reaches
27% with 355 million
internet users: Kleiner Perkins’ (ETTelecom,
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[21] Tanushree Basuroy, ‘Internet usage in India’ (Statista, 22 September 2022)
<www.statista.com/topics/2157/internet-usage-in-india > accessed 10 November 2022.
[22] Ani Petrosyan,
‘Internet users worldwide 2022’ (Statista, 13 February 2022),
[23] Tanushree Basuroy, ‘Internet usage in India’
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<www.statista.com/topics/2157/internet-usage-in-india > accessed 10 November 2022.
[24] Scroll Staff, ‘India had world’s highest number of internet shutdowns
for fourth straight year in 2021, says report’ (Scroll, 28 April 2022)
[25] Nitish Arya, Internet Shutdowns
in India: Understanding and Impact (2022).
[26] Ibid.
[27] Pranav Mukul, ‘Economic Impact:
“India lost $2.8 bn in 2020 to Internet shutdowns; over double of 20 others’ The Indian Express
(5 January 2021).
[28] Ibid.
[29] ‘Not right to resort to Internet
shutdown every time: Parliament panel’
Business Standard (2 December
2021).
[30] Anuradha Bhasin v Union of India (2020)
SCC Online SC 25.
[31] Ibid.
[32] The Constitution of India,
1950 art 19(2).
[33] State of Madras v VG Row AIR 1952 SC 196.
[34] Shreya Singhal v Union of India (2015)
5 SCC 1(India).
[35] Babulal Parate v State of Maharashtra AIR
1961 SC 884.
[36] Justice K. S. Puttuswamy (Retd) and Anr v Union of India (2017) 10 SCC 1.
[37] Anuradha Bhasin v Union of India (2020)
SCC Online SC 25.
[38] Faheema Shirin RK v State
of Kerala (2019) SCC Online Ker 2976.
[39] Anuradha Bhasin v Union of India (2020)
SCC Online SC 25.
[40] Aditi Chaturvedi, ‘Digital India
Dream and Arbitrary Internet Shutdowns Can’t Go Together. Just See the Loss’, The Print (23 March 2022).
[41] Human Rights
Watch, ‘No Internet Means No Work, No
Pay, No Food: Internet Shutdowns Deny Access to Basic Rights in “Digital India”
(2023)
[42] Hakeem Irfan Rashid, ‘Many Lose Jobs,
Migrate due to Internet Shutdown
in Kashmir’, The Economic Times (14 November 2019) < https://economictimes.indiatimes.com/news/politics-and-nation/many-lose-jobs- migrate-due-to-internet-shutdown-in-kashmir/articleshow/72057198.cms?from=mdr> accessed
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[43] Jan Rydzak, ‘Of Blackouts and Bandhs: The Strategy and Structure of Disconnected Protest in India’ (2019)
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[44] James Vincent, ’UN condemns internet
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[45] Ibid.
[46] Joint Declaration on Freedom of Expression and Responses to Conflict Situations, OHCHR (2015) www.ohchr.org/en/statements/2015/05/joint- declaration-freedom-expression-and-responses-conflict-situations#:~:text=Individuals%20who%20expose%20wrongdoing%2C%20serious, sanction%2C%20even%20if%20they%20have > accessed 13 August 2022.
[47] The promotion, protection and enjoyment of human rights
on the Internet Res 32/13
(2016) A/HRC/RES/32/13.
[48] International Telecommunications Union,
‘Building the Information Society: A Global
Challenge in the New
Millenium’ (Geneva Declaration of Principles, World Summit on the
Information Society, December
2003).
[49] United Nations Millennium Declaration Res 55/2 (2000) A/RES/55/2.
[50] Rec CM/Rec (2007) 16 ‘Committee of
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[51] David Kaye, Report of the Special Rapporteur on the Promotion
and Protection of the Right to Freedom
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[52] Soumyarendra Barik,
‘Draft Telecom Bill: Negative
Impact on Digital Ecosystem, Say Tech Companies’ The Indian Express (11 November 2022).
[53] Isha Sahai Bhatnagar, ‘No Centralised Data on Internet
Shutdowns, Centre Tells
Parliament’ Hindustan Times (4 August 2022).
[54] Jan Rydzak, ‘Of Blackouts and Bandhs: The Strategy and Structure of Disconnected Protest in India’ (2019)
accessed 23 February 2022.
[55] Mucahid Durmaz, ‘Do African
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22 August 2022.
[57] Madhu Limaye v Sub-Divisional Magistrate, Monghyr (1970) 3 SCC 746.
[58] Report of the Special Rapporteur
on the promotion and protection of the right to freedom
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22 August 2022.
[59] UN ICCPR, ‘General
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[60] ibid at para 43; UN Human Rights Committee
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Article Information
THE PARADOX OF PREVENTION: INDIVIDUALISTIC ASPECT OF INTERNET SHUTDOWNS
Authors: HARSH ENANIYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/07/02
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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