This article was written by Gungun Roy of 8th Semester of Sister Nivedita University, Kolkata, an intern under Legal Vidhiya
ABSTRACT
Internet shutdowns in India have emerged as a contentious issue, raising critical questions about their constitutional validity and implications on fundamental rights. This article examines the legal framework governing internet shutdowns in India, primarily focusing on Section 144 of the Code of Criminal Procedure (CrPC) and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. It explores the conflict between the state’s responsibility to ensure public order and national security and the citizen’s fundamental rights, such as freedom of speech and expression (Article 19 (1)(a)) and the right to trade and profession (Article 19 (1)(g)). The Article critically analyses landmark judgments, including Anuradha Bhasin v. Union of India, which emphasized proportionality, transparency, and judicial oversight in curtailing interest access of these shutdowns against constitutional safeguards, the study underscores the need for stricter scrutiny and a balanced approach to uphold democratic principles in the digital age.
KEYWORDS
Internet shutdowns, constitutional rights, digital rights, freedom of speech, right to life and liberty, proportionality tests, public safety, and internet restrictions.
INTRODUCTION
In the contemporary digital age, the internet has emerged as an essential component of daily life, significantly impacting various aspects such as communication, economic activities, education, and governance. It has transformed how people connect, conduct business, access information, and engage with their governments. In this context, India, the world’s largest democracy, has encountered a concerning trend: a significant rise in internet shutdowns throughout the past decade.
According to numerous reports and analyses, India has consistently dominated global statistics on internet suspensions. Authorities frequently justify these actions by maintaining public order, addressing security concerns, or preventing hate speech. However, the increasing frequency of such shutdowns raises critical questions about the balance between ensuring safety and preserving individual rights.
The implications of internet shutdowns extend beyond immediate disruptions; they pose serious challenges to constitutional rights enshrined in the Indian Constitution. For instance, Article 19(1)(a)[1] Guarantees the fundamental right to freedom of speech and expression, a cornerstone of democratic values. Similarly, Article 19(1)(g)[2] provides citizens the right to practice any profession or conduct any trade, while Article 21[3] Ensures the right to life and personal liberty. By imposing internet shutdowns, the government essentially curtails these essential freedoms, potentially infringing upon the citizen’s ability to communicate and participate in public discourse.
This article aims to develop deeper into the legal framework governing internet shutdowns in India, with a particular focus on the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017[4].
OVERVIEW OF INTERNET SHUTDOWNS IN INDIA
Internet shutdowns refer to the temporary or indefinite interruptions of Internet services that are enacted by government authorities within specific areas or throughout an entire nation. These actions are often taken under the pretext of various justifications, such as safeguarding national security, preventing civil unrest or violence, controlling the spread of misinformation, or maintaining public order during crises.
While authorities may consider these shutdowns necessary for immediate concerns, they can lead to extensive and lasting repercussions. The disruption of Internet access affects a wide range of sectors, including businesses that rely on online transactions and communication, educational institutions that utilize digital platforms for remote learning, and individuals who depend on the Internet for personal connections and information. Consequently, the impact of an internet shutdown extends beyond the immediate situation, hindering economic growth, impeding access to education, and disrupting everyday social interactions, ultimately affecting the broader community and society at large.
ANALYSIS OF LEGAL ISSUES IN INTERNET SHUTDOWNS IN INDIA
Fundamental Rights and Internet Shutdowns
Internet shutdowns primarily impinge upon the following constitutional rights:
Article 19(1)(a) {Freedom of Speech and Expression} – The internet is a medium through which individuals exercise their right to free speech. Shutting down access curtails this right, requiring the state to justify such measures under Article 19(2)[5], which permits restrictions only on specific grounds such as public order or national security1.
Article 19(1)(g) {Right to Carry on Trade and Profession} – In a digital economy, businesses rely heavily on the Internet for operations. An internet shutdown disrupts commerce, violating Article 19(1)(g)2, subject to the restrictions under Article 19(6)[6].
Article 21 {Right to Life and Liberty} – Access to the internet has been recognized as a facet of the right to life and liberty, especially in contexts like education, healthcare, and the right to information3.
Legal Framework Governing Shutdowns
Internet shutdowns in India are primarily governed by:
Section 144 of the Code of Criminal Procedure (CrPC), 1973 – Historically used to impose restrictions during emergencies, Section 144 has been widely invoked for internet shutdowns. However, its broad language raises concerns about misuse and arbitrariness.[7].
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 – These rules under the Telegraph Act, of 1885, provide the procedural framework for internet shutdowns. Only authorized officials (e.g., Home Secretaries) can approve shutdown orders. The rules mandate periodic review and impose procedural safeguards, but their implementation has been criticized for lack of transparency4.
Reasonable Restrictions and Proportionality
Under Article 19(2)5, the state can impose reasonable restrictions on fundamental rights in the interest of public order, national security, or sovereignty. However, such restrictions must satisfy the test of proportionality, as established in the
K.S. Puttaswamy v. Union of India (2017)[8] judgment –
Shutdowns must be necessary and proportionate to the intended objective. Indefinite or excessively prolonged shutdowns violate the principle of proportionality and are likely unconstitutional.
Judicial Oversight and Accountability
Anuradha Bhasin v. Union of India (2020) – Itis a significant judgment concerning freedom of speech and access to information in India. It arose in the context of the communication blackout imposed in Jammu and Kashmir after the abrogation of Article 370[9]. Anuradha Bhasin, a journalist and the executive editor of Kashmir Times, challenged the restrictions on internet access, which she argued severely impeded journalistic freedom and the public’s right to information.
The Supreme Court of India ruled that the right to access the internet is part of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution1. The Court emphasized that any restrictions on this right must be reasonable and proportionate. It asserted that the blanket suspension of internet services was unconstitutional and called for a review of such measures, ensuring that any limitations are justified and transparent.
It set a precedent for balancing national security concerns with individual rights, demonstrating the judiciary’s role in protecting civil liberties.[10]
Faheema Shirin R.K. v. State of Kerala (2019) – In the case of Faheema Shirin R.K. v. State of Kerala (2019), the Kerala High Court made a significant ruling by recognizing the right to internet access as an essential component of both the right to education and the right to privacy, as guaranteed under Article 21 of the Indian Constitution. The court emphasized that access to the Internet is crucial for students, particularly in the context of modern education, where digital resources and online learning platforms play a vital role. The decision highlights the importance of ensuring that all individuals, especially students from marginalized communities, have equitable access to internet connectivity, thereby reinforcing their educational rights and personal privacy in a digital age.
PUCL v. Union of India (1997) – This landmark case, while not specifically focused on internet shutdowns, set forth important legal principles regarding the interception of communications, such as telephone tapping. The court ruled that any restrictions placed on the right to communicate must adhere to standards of reasonableness and proportionality. This means that authorities must ensure that any limitations are not excessive and are justified by a legitimate aim. The principles established in this case are highly relevant to the context of internet-related restrictions, as they provide a framework for assessing whether such measures are justifiable under the law. Consequently, the principles of reasonable and proportionate restrictions can be applied to the regulation of internet access and shutdowns, reinforcing the idea that the right to communication should be protected.[11]
Transparency and Misuse
The ambiguous nature of shutdown orders frequently creates challenges when attempting to contest their legality in a court of law. This uncertainty can lead to confusion regarding the specific grounds on which the orders are issued, complicating efforts to address potential overreach.
Additionally, the recurrent and disproportionate application of Section 1447, which restricts assembly in certain areas, for extended periods has raised significant concerns. Often implemented without a transparent or well-founded rationale, this practice has attracted widespread criticism and is perceived by many as a misuse of authority, undermining civil liberties and the right to protest.
Impact on Democracy and Human Rights
Internet shutdowns pose a significant threat to democratic values, particularly in terms of free speech, access to vital information, and meaningful public participation. When these shutdowns are implemented during periods of protest or periods of dissent, they can effectively stifle the open exchange of ideas and impede the flow of information crucial for an informed citizenry. This suppression of communication raises serious concerns about governmental overreach and the potential abuse of power to silence opposition voices. Such actions can create an environment of fear and intimidation, ultimately undermining the foundations of a healthy democracy where dissent is a natural and necessary component of civic engagement. Thus, it is essential to critically examine the implications of internet shutdowns and advocate for the protection of digital rights.
International Perspectives and Obligations
India is a signatory to several important international agreements, one of which is the International Covenant on Civil and Political Rights (ICCPR). This covenant explicitly guarantees the right to freedom of expression, a fundamental human right that allows individuals to voice their opinions, access information, and participate in public discourse. Despite this commitment, India has experienced numerous internet shutdowns in recent years, often implemented by government authorities under the guise of maintaining public order or national security. These shutdowns have attracted significant criticism from various international organizations and human rights advocates, who argue that such actions violate the principles enshrined in the ICCPR. The frequent suspension of internet services raises serious concerns about how domestic practices in India align with global human rights standards. Critics emphasize the need for the Indian government to reconsider its approach to internet governance and ensure that its policies support, rather than undermine, the right to freedom of expression as guaranteed by international law[12].
LEGAL JUSTIFICATION FOR INTERNET SHUTDOWNS
Indian law permits internet shutdowns under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, issued under the Indian Telegraph Act, 1885. These rules empower central and state governments to suspend internet services during public emergencies or to prevent public disorder. While the framework provides a legal basis for such actions, its frequent overuse and misuse have sparked significant criticism.
The government has faced backlash for implementing blanket internet shutdowns, often without clear and specific justification. These shutdowns severely impact individuals’ ability to communicate, access information, and exercise their rights. Additionally, they disrupt vital sectors like education and the economy. Students lose access to online learning, businesses face operational challenges, and essential services are hindered, resulting in substantial economic losses.
During protests, internet shutdowns frequently block access to social media, news websites, and other platforms, stifling public discourse and participation in democratic processes. Such measures disproportionately affect marginalized groups, exacerbating inequalities and raising questions about the necessity and proportionality of the restrictions.
While intended to address public emergencies, the misuse of internet shutdowns undermines their legitimacy and poses serious threats to democratic values, free expression, and economic stability.
JUDICIAL OVERSIGHT AND STANDARDS
Judicial oversight has been instrumental in defining the legal standards for internet shutdowns in India, particularly through landmark judgments like the Anuradha Bhasin case. In this case, the Supreme Court of India laid down critical principles to ensure that internet restrictions comply with constitutional safeguards, emphasizing the protection of fundamental rights under Article 19 of the Constitution.
The Court ruled that any internet shutdown must satisfy the conditions laid out in Article 19(2), which permits restrictions on freedom of speech and expression only on grounds such as national security, public order, or morality. Moreover, the Court introduced the proportionality test, requiring the government to demonstrate that the shutdown is necessary, non-arbitrary, and the least restrictive means available to achieve the intended objective. This ensures that such measures do not disproportionately infringe upon citizens’ rights.
The judgment also highlighted the importance of transparency and accountability. It mandated that all internet shutdown orders must be made public, allowing affected individuals to understand the rationale behind such decisions and enabling them to seek legal recourse if necessary. The Court further clarified that these orders are subject to judicial review, providing an essential safeguard against arbitrary or excessive use of such powers. This ensures that the judiciary can examine whether the shutdown meets constitutional and statutory standards.
The Anuradha Bhasin case marked a significant shift towards protecting citizens from indiscriminate restrictions on internet access. By requiring proportionality, transparency, and judicial review, the Court established a framework aimed at balancing the state’s interest in maintaining public order with the fundamental rights of individuals. However, the effective implementation of these safeguards remains a challenge, as instances of prolonged and blanket internet shutdowns continue to raise questions about adherence to the principles laid out by the judiciary.
CONCERNS AND CHALLENGES
Despite the legal safeguards, internet shutdowns in India continue to raise significant concerns. A major issue is the lack of accountability and transparency in the decision-making process. Shutdowns are often imposed without adequate justification or judicial oversight, making them appear arbitrary and disproportionate. This undermines the principles of free and open internet, which are essential for democracy, free expression, and informed public discourse.
The economic and social costs of these shutdowns are particularly alarming. Internet disruptions affect businesses by halting online transactions, e-commerce, and essential services, leading to significant financial losses. They also hinder access to education, with students and educators unable to use online learning tools, particularly during extended shutdowns. Moreover, healthcare and emergency services relying on internet connectivity face operational difficulties, exacerbating the challenges for affected communities.
Prolonged shutdowns, like those in Jammu and Kashmir, have demonstrated the severe consequences of such measures. These restrictions have crippled local economies, disrupted livelihoods, and caused immense hardship for residents. Yet, there is little accountability for the authorities responsible, further eroding trust in governance.
To address these challenges, greater transparency, judicial oversight, and adherence to constitutional principles are needed. Internet shutdowns should remain a measure of last resort, used sparingly and with clear justification, to minimize their far-reaching consequences.[13].
CONCLUSION
While internet shutdowns may sometimes be necessary to address security concerns or maintain public order, they must adhere to constitutional principles. The Anuradha Bhasin case emphasized the need for proportionality, transparency, and accountability in imposing such restrictions. Decisions to suspend internet services should be proportionate to the threat, clearly communicated, and subject to oversight to prevent misuse.
The increasing frequency of shutdowns highlights concerns of potential overreach and underscores the need for a stronger legal framework. Such a framework must establish clear guidelines for when shutdowns can be justified while ensuring that individual rights are safeguarded. Striking this balance is crucial in a democratic society where freedom of speech and access to information are fundamental principles.
REFERENCES
- Drishti IAS, “Internet Shutdowns and Their Ramification, Djudiciary, (Last visited January 15, 2024), https://www.drishtiias.com/daily-updates/daily-news-editorials/internet-shutdowns-and-their-ramifications.
- Jain, A. (2023). “Internet Shutdowns in India: A Threat to Democracy?”, The Indian Express, (Lat visited January 15, 2024), https://indianexpress.com/.
- Digital Current Affairs, “Internet Shutdowns”, Digital Current Affairs, (Last visited January 15, 2024), https://visionias.in/current-affairs/monthly-magazine/2024-06-22/polity-and-governance/internet-shutdowns.
- Civils daily, “Internet Shutdowns in India: Upholding Constitutional Rights”, CIVILSDAILY, (Last visited February 4, 2025)
- Akash Jaini and Bhaskar Dhandharia, “The Legality of Arbitrary Internet Shutdowns in India”, blogs.Ise.ac.UK, (Last visited February 4, 2025) https://blogs.lse.ac.uk/humanrights/2022/03/25/the-legality-of-arbitrary-internet-shutdowns-in-india/.
- Kaif Hasan and Mohd. Rehan Ali, Laws, and Regulations surrounding internet shutdowns, Bar and Bench, (Last visited February 4, 2025) https://www.barandbench.com/columns/the-issue-of-frequent-internet-suspensions-accessing-the-laws-and-regulations-related-to-it.
[1] Constitution of India, art. 19(1)(a).
[2] Constitution of India, art. 19(1)(g).
[3] Constitution of India, art. 21.
[4] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Government of India, No.679, (New Delhi, the 7th August, 2017).
[5] Constitution of India, art. 19(2).
[6] Constitution of India, art. 19(6).
[7] The Code of Criminal Procedure,1973, Sec.144, No.2 of 1974, Acts of Parliament, 1973(India).
[8] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India, AIR 2017 SC 4161.
[9] Constitution of India, art. 370.
[10] Anuradha Bhasin v. Union of India, AIR 2020 SC 17.
[11] People’s Union of Civil Liberties v. Union of India and Anr,1996, AIR 1997 SC 568.
[12] Drishti IAS, Internet Shutdowns and Their Ramifications (7th Oct 2023), (Last visited January 15, 2025, 03.00 PM) https://www.drishtiias.com/daily-updates/daily-news-editorials/internet-shutdowns-and-their-ramifications.
[13] Drishti IAS, Internet Shutdowns and Their Ramifications (7th Oct 2023), (Last visited February 2, 2025, 05.00 PM) https://www.drishtiias.com/daily-updates/daily-news-editorials/internet-shutdowns-and-their-ramifications.
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