Internet Shutdown and Violation of Fundamental Right

In respect of Article 19(1)(a)

Introduction:

Since a decade, there have been roughly 665 internet shutdowns in India with the recent one just after the Udaipur incident[1] as per the data provided by the Software Freedom Law Center, a firm that provides legal services in this area.

These shutdowns were initiated after any protest, incident, violence and situations where there was reasonable apprehension that violence was inevitable and such activities required for shutdowns to be called. However, with almost 60 shutdowns this year, it seems that the Indian Establishment is having a trigger-happy approach towards shutdowns.

In this context, the term “shut downs” refers to a complete suspension of either fixed-line (dial-up, wired/wireless broadband) or mobile (4G/LTE) Internet. Even the nearly-phased out 3G networks are shut down.

However, such an approach has not been ignored with the public raising questions and pointing their fingers at the Government as well as challenging the same in the Courts of Law.

Reasons for Shutdown:

The Authorities claim that inaccurate statement and hearsay may cause law and order in a region to deteriorate, hence restricting the spread of information benefits in keeping communities peaceful during situations.[2]

Moreover, according to the regulations established by the central government, interim suspensions may be “due to public emergency or public safety” and are subject to the authority of senior officials from the Home Ministry at the federal and state levels.

Additionally, the Government states restrictions on free speech must be “essential” for specific stated goals, such as the preservation of public health or national security. However, such reasons have no strong foundation to back on and are supported by vague and open-ended reasons. For example, in Rajasthan, internet has been shut down even at rallies for reservation to combating cheating in the state’s Eligibility Examination for Teachers (REET)[3].

Impacts of Shutdown:

On Social and Educational Front

Shutdowns of the internet have a significant impact on the ability of humanitarian organizations to offer aid. It is possible to interrupt supplier base and flow of information that are essential to the delivery of services and goods.

Research has demonstrated the profound impacts of shutdowns on healthcare systems, including on mobilizing emergency medical care, meddling with the delivery of necessary medications as well as equipment maintenance, restricting the information exchange between medical personnel, and impeding with the provision of necessary mental health care.

The internet is now an element of the educational environment, increasing many of its components including administration, infrastructure, research, teaching and learning, and social interaction.” The demise of the internet or other connected platforms would be devastating, notably to e-learning projects, IT infrastructure, and joint research.

In addition to undermining educational outcomes, it obstructs teacher, school administration, and family communication during educational planning.

When the web is down, it affects people’s ability to transmit online recruitment applications, complete id papers, submit university and school tasks, and send remittances, in addition to how smoothly their lives operate.

The smooth operation of the household and the school run might be affected in cultures where majority of people rely on websites for social media for essential interactions. This interferes with transportation networks, notably ride-sharing services that rely on online payment methods and geolocation data obtained from the Internet.

The contrast between possible harm and the advantages of social media access and the difficulties faced in limiting harm was best shown by the COVID-19[4] outbreak.

Social media organizations, including Twitter, Google, Reddit and others, issued a collective statement in March 2020 outlining[5] concerted measures to thwart false information about the epidemic and promote “authoritative material” on their systems. Connectivity is currently considered as being more fundamental than ever.

Yet despite even more severe condemnation from human rights organizations than normal, nations like Ethiopia, Myanmar and even India have kept some curbs on Internet access in place, mainly those frequently linked to separatist groups.

On the Economic Front

We may all be in a cosy setting, which would be a straightforward response to this. Today, we can order takeout, go on a walk, search anything on Google, or ask for comfort food using our phone’s internet, broadband, or Wi-Fi.

All of these things are now standard practice thanks to the internet, but you can also carry out many more jobs such as managing your business, filling out test forms, and seeing results. Because the Internet makes all of these amenities possible, losing any one of them abruptly, even for a week or a few days, may be quite inconvenient for us.

Based on a Brookings Institute[6] analysis that attempted to assess the costs incurred by several nations as a result of such technology, India came out on top, suffering losses of $968 million just in 2016 only.

On the Democratic Front:

“When you see a shutdown happen, it’s time to start worrying about human rights”

Peggy Hicks, Director of the Thematic Engagement, Special Procedures and Right to Development Division, at the UN human rights office (OHCHR).[7]

Even though they were given assistance to improve their Internet access, at least 27 of the 46 least developed nations imposed shutdowns between 2016 and 2021, emphasized Ms. Hicks. Egypt experienced its first significant internet outage during the Tahrir Square protests (2011), which resulted in lots and lots of arrests with fatalities.

Closures cause an entire loss of Internet inter-connectivity, but governments are also actively restricting way to popular communication mediums, capping bandwidth and mobile services at 2G transmission rate, ultimately challenging to share and view real-time broadcasts.

Numerous States deny meddling with telecommunications or exerting pressure on telecom firms to prohibit information exchange. In 228 occasions that civil society organizations in 55 different nations reported, the official explanation for the shutdowns was unknown. When authorities admit to ordering interruptions, they frequently explain reasons related to protecting the public, stopping the rise of hatred or violence, or battling misinformation.

Shutdowns, however, frequently have the inverse result. Ms. Hicks argues that “199 Shutdowns were justified by concerns about public safety, and 150 were based on national security justifications. However, a lot of those closures were followed by increases in violence in the state.

Moreover, according to the researchers, these interruptions reduce or completely remove access to digital tools that are essential for holding elections, stimulating public discourse, and conducting voting. The job of journalists and the media in general is significantly hampered by disruptions, which is a crucial component of fair elections.

They continued, citing reports of shutdowns after rallies during election seasons in nations like Belarus and Niger. According to the researchers, as many as 132 of the shutdowns reported by civil society organizations were ostensibly required to stop the spread of hate speech, misinformation, or other types of content deemed harmful or unlawful.

In the Indian Scape:

In a petition submitted to the Supreme Court on Friday, the government’s arbitrary and irrational Internet shutdowns constitute a breach of the basic freedoms of information, education, and expression stipulated by the Constitution. Internet access should be considered to be a basic right, according to the petition submitted by Supreme Court counsel Ehtesham Hashmi.

“The right to access the internet is a basic right under Article 21 of the Constitution’s right to privacy and right to education. According to the appeal submitted by Supreme Court attorney Ehtesham Hashmi, the suspension and shutdown of the Internet and communication services violates the freedom and rights granted and protected under Articles 19 and 21.

The State’s arbitrary Internet shutdowns not only violate citizens’ civil freedoms and constitutional rights, but in addition, it’s questionable if these shutdowns contribute to upholding law and order, as indicated in their claimed objectives.

When they occur, cuts to communications and the internet undermine the fundamental right to free speech. Governments may be apprehensive of the Internet since it allows for the prominence of voices from all political perspectives and considerably increases agency.

People rely on the Net to connect with friends and family, exchange information, expertise, and keep government agencies responsible.

Every company, from restaurants to clothing stores to Uber drivers, depends on the Internet. These businesses suffer real financial losses when the Internet is unavailable. Online learning materials are likewise becoming more and more important to students. The basis of many government initiatives and programmes, including food distribution and administration via ration shops, Direct Benefit Transfers (DBTs), and digital payments via the United Payments Interface (UPI), is made up of information and communication technology.

The top court reiterates that the constitution guarantees freedom of speech and expression, which also encompasses access to the internet. The court decided that this order, which completely restricts internet use, should be released publicly and be transparent to judicial scrutiny.

The Supreme Court held that commands to shut down the web must qualify the necessary and proportionate requirements and that any ambiguous restrictions on internet services would be unlawful.

Legal Warzone:

In 2019, the modification of Article 367[8] and its wording in relation to the State of J/K gave rise to this problem. The tour of the foreigners was subsequently cut short, plans were drawn up for them to return, and offices and educational institutions were closed until further instructions.

Implementing Section 144[9] of the Cr.P.C., District Magistrates acknowledged a violation of peace and tranquilly and thereafter placed limitations on public gatherings and movement. Internet, mobile, and landline access were all suspended on August 4, 2019, until additional instructions.

Ms. Anuradha Bhasin[10], the petitioner, filed a petition, W.P. (C) Number – 1031/2019. She stated that the net is fundamental for the modern media while serving as executive editor of the Kashmir Times Srinagar Division.

The petitioner highlighted that since the newspaper had not been published since 06.08.2019, print media would become obsolete without internet. The petitioner’s contention was that the current regime must find a method to strike a balance between the steps required to safeguard homeland security as well as the rights of the people.

The argument focused on the inability to provide a sufficient justification for the order’s execution, as required under the suspension guidelines. She said that the sole basis for the issuing of such orders was the mere suspicion of a harm to law and order, which was erroneous.

However, the government is using it as justification for enacting legislation restricting citizens’ liberties. He stated that the limits would only be in place briefly, yet they have been in place for more than a hundred days.

The following issues were raised by the Petitioner[11]: –

Issue 1:
Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

Issue 2:
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Issue 3:
Whether the imposition of restrictions under Section 144, CrPC were valid? Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC?

Issue 4:
Whether the Government’s action of prohibiting internet access is valid?

On the contrary, the respondent side’s Attorney General, made the argument that Jammu and Kashmir’s insurgency must be factored into the equation. He presented the evidence in court to support his argument that the state’s circumstances were taken into account in the decision to issue such an order. Knowing the history of internal and external militancy was the only justification for taking preventative steps, since doing otherwise may result in great barbarism.

He contrasted the situation to that of 2016, when a terrorist was and equivalent official steps were taken.

Additionally, the Solicitor General, explained that the goal was to safeguard the people, which is the state’s first priority. He believed that the state needed these directives in order to be at concord. According to him, these regulations are routinely being loosened based on the local environment at the time.

Even the Magistrates argued that the prior reduction that was made based on a perception of threat had almost completely taken place. The petitioner’s workplace is among those with operating televisions, radio stations, and newspapers. For the people’ protection, the orders issued under Section 144 of the CrPC may be preventative.

He defended it by stating that it is impractical to separate agitators from pacifists. He stated that Jammu and Ladakh never had censorship of the internet.

The issues were heard by the Hon’ble Court and one each Issue, the Court gave the following observations and rulings: –

ISSUE-1

The Supreme Court ruled that Article 19(1)(a) includes freedom of expression on the internet as one of its essential components.

They emphasized the previous judgement in Indian Express v. Union of India, which established freedom of the printed word to be a fundamental right under Article 19(1). (a).

Later, it was determined in Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana that Article 19(1) now protects people’ rights to publicly display motion pictures. Internet is one of the essential tools for disseminating information, hence the Article recognises freedom of speech and expression on the internet as a fundamental right.

According to this statement, any restriction on internet access would need to be proportionate and adhere to the Constitution’s provisions in Articles 19(2) and 19(6). The court would not only take into account that there isn’t an unreasonable burden on the right to free speech and expression, as well as that harmony and tranquilly are maintained.

ISSUE-2

The limits imposed did not infringe the petitioner’s right to freedom of expression. This argument was turned down. Unquestionably, one of a democracy’s fundamental characteristics and one that the Constitution does a great job of protecting is press freedom.

The petitioner was unable to provide any evidence that the instructions placed confinement on press freedom, including the printing and distribution of newspapers.

As a result, the court was unable to determine if or not the claim was competent. The petitioner now has started publishing again. The court concluded that it was not unlawful and that the government was protecting journalistic openness as a result.

ISSUE-3

Constraints imposed u/s 144 of the Criminal Procedure Code were invalid. The Government is not immune from providing all of the orders issued in accordance with Section 144 of the CrPC.

It was ruled that valid expression of thought, complaint, or exercise of any democratic right cannot be suppressed by the application of authority. This clause may only be enforced in an emergency; it may not be used to prevent instruction or harm to those who are legitimately employed.

Therefore, a simple disruption of the state’s public order may not always result in a breach of the peace. To determine if there is a threat to public peace, only the magistrate and the state have the authority.

ISSUE-4

The government’s decision to forbid internet use is invalid.

It was emphasized that in order to establish whether the internet shutdown was constitutionally legitimate, it was necessary to take into account both procedural and substantive factors.

The procedural mechanism is composed of two parts. Internet service providers and the government have a contractual relationship, which is the first aspect. There is also the legislative component, which is covered by the Telegraph Act, the CrPC, and the IT Act, 2000.

Aftermath[12]:

The court ruled that the government could not raise an alternative for presenting a court order made u/s 144 of the CrPC. Accordingly, freedom of speech, freedom of expression, as well as the freedom to engage in any industry, occupation, or trade on the internet are all fundamental rights protected by the Constitution’s Part III due to their being crucial to modern life.

The court also ruled that the ban on using the internet would only be valid under specific conditions; otherwise, it will be lifted. Since these restrictions have an impact on citizen’s Fundamental Rights, the court mandated that the fairness test be followed in order to ensure that principle of justice has not been violated.

The verdict did not grant instant remedy to the individuals who were impacted by these decrees, but it did set up guidelines for subsequent suspension authorizations and their application to stop the government from abusing its authority. This serves as a fix for further complications.

The court’s decision broadened the definition and scope of Article 19 by additionally including the right to access the internet, which is a core part of the Article that would be confined in cases of homeland/national safety only.

What the Article 19 and Freedom of Speech entails:

The Article states that, “all citizens shall have the right to freedom of speech and expression”.

The Preamble of the Constitution contains a firm resolution to provide liberty of thought and expression to all of its citizens, which is the basis for this Article’s philosophy. Although, under Article 19(2) of the Indian Constitution, “reasonable limits” may be placed on the use of this freedom for particular reasons.

Over the years, there have been several Judgements which were based on this Fundamental Right.

Freedom of Press and other associated freedoms;
It was decided in the case of Indian Express v. Union of India[13], (1985) 1 SCC 641, that the press is a crucial component of the democratic apparatus. The courts have an obligation to defend journalistic freedom and to nullify any laws or public policies that curtail it. This freedom also encompasses freedom from pre-censorship and freedom of publishing and distribution.
The Supreme Court determined in Odyssey Communications (P) Ltd v. Lokvidayan Sanghatana[14] that a citizen’s ability to watch movies on Doordarshan is a basic right protected by Article 19(1)(a). In this case, the petitioners contested the Doordarshan airing of the serial “Honi Anhonion” on the grounds that it promoted viewers’ superstition and blind faith. The petition was denied because the petitioner did not provide the public with any proof of bias.
The cases of Bennett Coleman and Co. v. Union of India[15] and Sakal Papers Ltd. v. Union of India[16], fixed the number of pages and size that a newspaper could publish at a price.
In the case of Brij Bhushan v. State of Delhi[17], the court invalidated the pre-censorship order placed on an English Weekly of Delhi, which required the editor and publisher of a newspaper to submit all communitarian matters and news and views about Pakistan, including photographs and cartoons, for critique, in photocopy, before the publication.
The Supreme Court decided in Tata Press Ltd. vs. Mahanagar Telephone Nigam Ltd[18]. that a business advertising or sales promotion was also a part of the freedom of speech and expression and would only be bound within the boundaries of Article 19(2).
Additionally, it was also ruled that even while advertising is only a business transaction, it still disseminates information about the promoted goods. The information made available through the adverts is advantageous to the general public. Free exchange of business information is essential in a democracy.

Defining the parameters of free speech and expression, the Supreme Court laid out that “freedom of speech and expression” should be interpreted widely to encompass the liberty to freely express one’s opinions orally, in writing, or via the use of audiovisual tools.

This right to express one’s thoughts and beliefs through speech and writing, as well as through the use of images, photographs, and other media, is known as freedom of speech. Thus, it covers the expression of one’s ideas in any visible or communicative form.

Commercial and creative speech are not specifically included in Indian law. The Supreme Court of India, however, has stated that “commercial speech” cannot be denied the protection of Article 19(1)(a) of the Constitution while Indian law continues to grow. According to the Court, “commercial speech” is protected under the Constitution’s provision of “free expression.”

In most of the above-mentioned cases, reasonable restrictions are talked about, so what are the Reasonable Restrictions on this Fundamental Right?

The Indian Constitution’s Clause (2) Article 19 places various limits on free expression under the following headings:
I. Security of The State,
ii. Friendly Relations with Foreign States
iii. Public Order,
iv. Decency and Morality,
v. Contempt of Court,
vi. Defamation,
vii. Incitement to An Offence,

1. Security of the State

Due to its significance and the government’s authority to impose limitations on actions that compromise national security, for example, if he or she is encouraging or motivating the commission of a crime, are hence issues that might jeopardize state security. That person may be subject to limitations.

Until and until it falls under the justifications of restriction under Article 19 of the Indian Constitution, tapping telephones is a violation of Section 19(1)(a).

2. Friendly Relations with Foreign States

If exercising one’s right to free speech and expression harms cordial ties with other States, a sovereign may place restrictions on it. It was included into the Indian Constitution thanks to the First Amendment Act of 1951.

Additionally, it should be emphasized that there is no other constitution in the world with a clause like this one.

3. Public Order

Supreme Court ruled in Romesh Thapar v. State of Madras that public order is distinct from both state security and law and order. Additionally, there is no justification for putting limits on public order when it comes to local public order violations.

Moreover, public order is a manifestation of public tranquilly, safety, and harmony. In this instance, a legislation in the State of Madras prohibited a Journal in the sake of maintaining public order.

4. Decency and Morality

Sections of the IPC (292-294) explain the terms morality and decency. This allows the government the authority to place particular constraints on the right to free speech and expression. These IPC laws prohibit the public distribution or sale of inappropriate content.

5. Contempt of Court

One of the most debated matters is this restriction. It includes both criminal and civil disobedience. The truth is now a defense under the 2006 amendments to the Contempt Law.

6. Defamation

A person is subject to a limitation under Article 19(2) that forbids him from making statements that damage the reputation of another person.

The constitution places limitations on freedom of expression since a person is recognized by his or her reputation in the community. Sections 499 and 500 of the IPC make defamation a crime.

7. Incitement to An Offence

The incitement to commit an offence element was inserted by the very 1^st Constitutional amendment, 1951. People are not allowed to commit violent acts as a result of this right and liberty.

According to General Clause act, infraction consists of any act/omission that a person does that is punished under any legislation that is now in effect.

Whether it should be followed as it is? Or it needs some change

Despite the absence of official statistics on the number of shutdowns, estimations from research organizations suggest that they have become more frequent in recent years. Because Internet usage has been rising in India and the coronavirus epidemic has made it an even more widely utilized critical service, a growing population of people have been affected as a consequence.

It may be challenging to determine whether a shutdown is in effect or if your phone merely isn’t functioning correctly because they are not usually formally notified. SMS alerts are used in some states, including Rajasthan.

So, change is absolutely required.

While the Government must also be pressurized to do away with the arbitrary-ness attitude, such steps must be taken at the Individual level to stay connected.

However, there may not be a long-term solution to stop government induced internet shutdowns, there are several ways one can bypass the same in case of an internet shut down in his or her area/region.

Using a VPN[19] is a popular method of getting access to websites or information that is restricted in a particular nation. To stop anyone with a local IP from accessing a prohibited website is one type of blocking, which is often carried out by telecom companies or communications authorities. By passing your connection through a distant server, VPNs conceal your IP address and make it appear as though you are viewing a website from a different country.

You may surf the net incognito and get around blocked websites with the use of circumvention tools. They can assist you in evading detection by ISPs and authorities. Users route their traffic through a proxy, which is a separate system.

A tool for launching uncensorable websites is called Unstoppable Domains. Nobody else can dismantle the domain since it is saved in the bitcoin wallet and is decentralized and everlasting on the chain. You can also utilize their emails and chat features to contact with one another directly.

Conclusion

Internet service providers are in charge of carrying out direct orders to shut the web. should take all available measures to resist arbitrary internet closures, including requesting a legal justification for every such order and interpreting requests to result in the fewest invasive limitations.

In particular during the COVID-19 outbreak, they should abide by the UN’s Guiding Principles on Business and Human Rights and desist from [20], organized by Access Now, invites human rights groups to unite and take part in the battle against internet outages through recording, lobbying, policy maker engagement, technical help, and legal initiatives.

Our country has the second-largest number of cell phone internet users worldwide. Additionally, when it regards internet shutoffs, it accounts for the largest share, gaining the infamous moniker of “internet shutdown capital” of the globe.

It’s time to declare a moratorium on internet shutoffs during a worldwide epidemic, when individuals throughout the world are isolated and access to information might mean life or death Governments should make sure that everyone has rapid access to the best, most comprehensive service.

Authored by – Harsh Dabas, Second-Year Law Student at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. LinkedIn.

[1] https://indianexpress.com/article/explained/explained-the-frequency-reasons-and-controversy-over-internet-suspensions-by-the-government-8005450/

[2] https://internetshutdowns.in

[3] https://indianexpress.com/article/jobs/rajasthan-shuts-down-internet-as-16-lakh-sit-for-teacher-exam-7536304/

[4] https://www.who.int/health-topics/coronavirus#tab=tab_1

[5] https://techcrunch.com/2020/03/16/facebook-reddit-google-linkedin-microsoft-twitter-and-youtube-issue-joint-statement-on-misinformation/

[6] https://www.brookings.edu/topic/telecommunications-internet/

[7] https://www.ohchr.org/en/ohchr_homepage

[8] https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/

[9] https://indiankanoon.org/doc/930621/

[10] https://www.legalserviceindia.com/legal/article-3164-anuradha-bhasin-v-s-union-of-india.html

[11] https://indiankanoon.org/doc/82461587/

[12] https://internetfreedom.in/publication-internet-shutdown-orders/