Revisiting Internet Shutdowns and the Right to Freedom of Expression

Rashi Rawat and Himanshu Kumar

Introduction

In January 2020,  the Supreme Court in Anuradha Bhasin took an unprecedented stand on the rampant internet shutdowns in India. According to the Court, it was a situation in which Liberty and Security were at loggerheads and it was of great significance that this pendulum should not swing to either extreme. However, for the sake of  national security, is neglecting the rule of law a reasonable compromise?

Experts have defined an internet shutdown as an intentional disruption of Internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.”  Internet shutdowns are an unusual measure in a democracy and their imposition is not in compliance with the established procedure. Though the internet services were restored in Kashmir subsequently through various government orders, the state has continued to restrain internet access by adopting white-listing of websites and bandwidth throttling.

This article sheds light on how the jurisprudence on the right to internet access as well as restrictions on such rights has evolved in the Indian context. It elaborates the different statutes which empower the government to pass such orders and how the safeguards thereunder have not been followed. Moreover, such orders do not fulfill the three-part test under Article 19(3) of the ICCPR. Hence, they violate the international standards governing freedom of expression. This article attempts to analyse whether these restrictions amount to violation of the right to freedom of expression under Indian and International Law.

Indian Law

Article 19 and the Right to Internet

The right to access and distribution of information is protected under the freedom of expression guaranteed by Article 19(1)(a) of the Indian Constitution. Moreover, Article 19 also protects rights which form an integral part or an exercise of the freedom of expression. The internet is, consequently, an offshoot of the right of freedom of expression. In Shreya Singhal v. Union of India, the Supreme Court recognised the internet as an essential medium to further the constitutional right to freedom of speech and expression. In 2019, the Kerala High Court held that the right of access to the internet is a fundamental freedom.

In Anuradha Bhasin, the Supreme Court held that expression of one’s views and practicing any profession through the internet is a protected right under Articles 19(1)(a) and 19(1)(g).The Court also went on to elucidate that such online speech can only be impeded under the recognized restrictions under Article 19(2) and Article 19(6) and that the proper standard of review would be the test of proportionality.

Therefore, the Supreme Court extended the proportionality test laid down in Puttaswamy II to internet disruptions. The proportionality test stands on four legs: firstly, the restriction should serve a legitimate goal, secondly, it must be a suitable means of furthering this goal, thirdly, there must not be any less restrictive but equally effective alternative, and fourthly, the measure must not have a disproportionate impact on the right-holder.

Legality of Internet Shutdowns

122 major shutdowns took place in 21 countries during 2019. 106 of them were in India. Restrictions to the internet in India take place under three distinct laws: Section 144 Code of Criminal Procedure of 1973; Section 5 of Indian Telegraph Act of  1885 in consonance with the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017; and Section 69A of the Information Technology Act, 2000, which allows only the blocking of specific content on internet.

Section 144 which is primarily used to pass internet shutdown orders must conform to the proportionality test. The section also provides safeguards like pre-inquiry, order containing material facts, communicating the order to affected persons and duration only till it is necessary to prevent misuse of such wide powers. However, in practice, these limitations are often  ignored. After the passing of the 2017 Rules, the courts have held that section 144 cannot be used to impose internet shutdowns and to suppress legitimate expression.

Section 5 of Indian Telegraph Act, 1885 read with Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 is used to pass the remainder of internet shutdowns. The safeguards provided under section 2 are again not paid heed to. In the case of Kashmir shutdowns, the government was hesitant to providing the orders before the Supreme Court, and the state itself was asked to assess the proportionality of those orders. By doing so, the right to a judicial review as well as the application of judicial mind to decide significant questions,such as restrictions on fundamental rights and the appropriate review standard, have been circumvented.

International Law

The Right to Freedom of Expression is a universally recognized right, fundamental to human dignity and key to the protection of all other human rights. This freedom of expression applies not only to content, but also to the means of dissemination of content and therefore, access to the internet is protected under this right.

However, it is not an absolute right and every country has developed a mechanism to impose limitations on freedom of expression. International Law provides for a three-part test to assess the restrictions on the right to freedom of expression, laid out in Article 19(3) of the International Covenant on Civil and Political Rights. India, being a party to the said convention, is  obliged to ensure that restrictions imposed by the government meet the three-part test.

Assessment of the Indian Law on internet shutdown under the Three Part Test:

  • Prescribed by Law:

A rule is prescribed by law if it is sufficiently precise for an individual to gauge the consequences of his action. The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has emphasized that internet restrictions pursuant to vague and overbroad laws fail to satisfy the legality requirement and cannot be considered as “prescribed by law”.

As we have noted, the legal basis for internet shutdowns in India emanates from two provisions: section 144 of the Criminal Procedure Code 1973 and Section 5(2) of the Telegraph Act. While section 144 is invoked when there is “imminent threat to peace”, the provision fails to list the situations that would amount to a threat to public peace. Similarly, the prerequisite for an order to be passed under Section 5(2) of the telegraph act is the occurrence of a “public emergency” but the act fails to define the term. In Anuradha Bhasin v. UOI, the Indian Supreme Court observed that the word emergency has different annotations. In such a case, it is all the more necessary for the law to provide a clear definition of the term. Therefore, the law imposing internet shutdown in India does not lay down specific restrictions that citizens can conform their conduct to, thereby making them overbroad.

  • Legitimate Aim:

Article 19 of the ICCPR recognizes certain legitimate aims in pursuance of which the government can impose restrictions. While assessing the aim of a restriction, both its purpose and its effect should be taken into account. A recent Access Now report revealed that under the garb of national security and public peace, the government has imposed internet bans in the past to shape the political narrative and control information. Key international human rights organisations have noted that the emerging trend of putting blanket bans on the internet is highly disconcerting and has staggering effects on health, education and the economy.

  • Necessity and Proportionality:

Restrictions on speech under Art.19(3) of the ICCPR must be strictly construed and their need should be convincingly established. In this instance, the government of India has repeatedly failed to show that cutting off internet access is necessary for national security or preventing public disorder. A similar view was taken by the UN Special Rapporteur wherein he noted, “necessity requires a showing that shutdowns would achieve their stated purpose, which in fact they often jeopardize’.

Moreover, on the issue of whether an internet shutdown may be a proportionate action to protect national security or public order, experts at ARTICLE 19 (a renowned international organization working towards the protection of free speech) and the United Nations have asserted that internet shutdowns always amount to a disproportionate restriction on freedom of expression and have devastating repercussions for other human rights.”

Conclusion

In times of a global pandemic, the internet is not just a medium of expression but a key element of access to healthcare, public information, education policy, and an offshoot of the right to life. Yet, the Indian government’s impunity in resorting to these shutdowns is preposterously unconstitutional. Such restrictions are not just a violation of national and international law but they can also have catastrophic consequences for the affected users who are cut off from emergency services and crucial health information, transportation, school classes, reporting on major human rights crises and investigation. Moreover, internet connectivity has become an indispensable part of everyday businesses and therefore internet shutdowns can have crippling effects on the economy. A recent study revealed that the Indian economy lost over 1.3 billion dollars due to shutdowns in 2019.

Unfortunately, India has been regarded as the “undisputed champion” of internet blackouts globally due to its blatant disregard to human rights law. Even after receiving condemnation from various international bodies, and a direction from the Supreme Court to review the order on internet shutdowns, the Jammu and Kashmir government has continued to restrict internet access by severely limiting internet speeds to 2G. This intentional slowing of the internet is referred to as ‘bandwidth throttling’. As a result of slow speed, people are unable to upload or view photos, students find  it extremely difficult to attend classes online and apply for higher education, and doctors are unable to access treatment details and “potentially life-saving information”.

Throttling essentially renders the internet “effectively unusable,” and is merely a tactic used by the government to escape accountability and liability. It is imperative for the administration to realize that it is not a substitute to open internet access and the government should not be allowed to shrug off its responsibility by resorting to it.

The authors are third year students, pursuing their law degree from the Gujarat National Law University, Gandhinagar.

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