CASE COMMENT ON INTERNET SHUTDOWN AND THE ANURADHA CASE BY - SUDHANVA
CASE COMMENT ON INTERNET SHUTDOWN AND
THE ANURADHA CASE
AUTHORED
BY - SUDHANVA
4TH
YEAR JINDAL GLOBAL LAW SCHOOL
In a democracy the least that is
expected from the government is not to exploit the loopholes in their very own
laws, to supress the voices of their own citizens, or make their livelihood
inaccessible to them. India has recorded the highest number of internet
shutdowns, particularly at times and stages when people have tried to criticize
and question the government. The government paints these acts as a threat of
mobilisation or security concerns (which may indeed have been the case in few
circumstance but quite of often the cover for the government) to impose upon
its people a blanket shutdown of the internet. Indeed, the internet does
facilitate the non-state elements in conspiring and execution of their
missions, but then why has the government without supervision attempted and
promoted to digitalise the lives of its citizens on the very platform. Thus, at
the end of the day when the government is not equipped with the means to curb
the threat of the non-state elements it can only resort to a complete restriction
of the internet, leaving its citizens with no alternatives.
The legislature and the
administrative prior to any valid and explicit laws for restricting the
internet, had erroneously brought it under the ambit of section 144 of the
CrPC. This statute had become a play tool since the section is essentially
confers the government to take all measures in situations when there has been a
threat to the society and law. What is more saddening is that the Judiciary too
had validate this practice in the case of Gaurav Sureshbhai Vyas v. State of
Gujarat giving permission to the government extra-discretion and excessive
power. It is only until the Temporary Suspension of Telecom Services (Public
Emergency or Public Service) Rules, 2017 where in it could actually be said
that any power to restrict the internet was explicitly conferred upon the
government.
This law has been particularly abused
in the previous state of Jammu and Kashmir time and again, when the government
had placed blanket bans over the internet for huge period of time unreasonably
and even without any warranted laws. When these irregularities had finally
reached the doorsteps of the Court in the matter of Anuradha Bhasin v. Union of
India, it could be said that the Honourable Court has rather provided an unjust
verdict and evaded from performing a complete investigation and analysis of the
matter. The reasoning for the disappointment is that firstly, that the Court
has not evaluated the position whether the access to Internet is a fundamental
right or not, it has rather addressed only whether a certain narrowed utilities
of the internet would constitute a fundamental right. Secondly, while the court
was tasked in actually measuring the proportionality of the restriction to the
fundamental right, it has spoken volumes of the importance of the doctrine but
not at a single instance actually weighed the restriction against the right.
Thirdly, while the court was supposed to be the ultimate reviewer of such
unreasonable orders, it has failed to take any assertive action in ruling
against the arbitrary internet shutdown orders, rather has gently brushed away
the matter to a committee-based introspection.
In the judgement the court takes us
through the developments and jurisprudence of the Court in acceptance the
various mediums created for the serving the freedom of speech and profession
under Article 19 (1) (a) and (g) including the internet in this particular
case. It is to be noted that when they exclude having access to the internet as
a fundamental right, then it could only mean that only if the internet is being
used for the purpose of free speech or profession is it granted as a
fundamental right, it does not account for any other use of the internet for
instance for educational purposes or banking or healthcare purposes. It is the
utility of the internet in limited ways which can be fit into the definitions
under the two clauses is the only way that it could be a fundamental right.
When the question of proportionality
was raised, the court has evidently buried the issue under the carpet. Since,
this was the biggest opportunity to verify whether a blanket shutdown of the
internet is the only option whenever the government faces with a cyber threat
or aggression. The court could have utilised it to question the existence of
measures which could have been taken such surveillance of social media platforms,
restriction on certain websites and etc among many other options. However, the
court ended up gauging with the discrepancy in the meaning of a temporary
shutdown, to which too the answer was not satisfying. The best the court was
able to deliver was a review committee which would offer an evaluation directly
to the government whether the period specified by them for such shutdowns were
necessary or not.
Lastly, when the court have all the
discretionary power to grant and create any legal remedy for the citizens, even
after recognising the numerous fallacies in the narrative of the Government,
the Court refrained from taking any affirmative measures in rectifying the
unreasonable restrictions. It had come to some suggestive conclusions such as the
government should likely consider allowing access to e-banking sites,
government websites and directing them to review the current restrictions.
Thus, the court have essentially
fortified the powers of the government to place blanket restriction on the
Internet for temporary periods rather then bringing down the crises of the
internet shutdowns. As the court although find the utility of the internet for
the free speech and carrying out their profession, the courts have found such
restriction to be brought under Article 19 (2) of the constitution reasonable.
The new laws has only changed the statute name and the section to implement
such an unreasonable restriction while the motive and powers are not being
questioned for any checks and measures like the court which has remained silent
over the matter. It wouldn’t be a surprise to continue see that India is still
the country with the largest internet shutdowns.