Censorship in Cyberspace: Internet Shutdowns and Civil Liberties
Note: This blog has been written by the author in view of the internet shutdowns in the Union Territory of Jammu and Kashmir over the last decade. Introduction The internet has become an integral part of our day-to-day lives. First developed for military communications1, the commercialisation of the internet transformed it into a technological revolution in the last 2-3 decades. Nowadays, we can’t even imagine a world without the internet. It is used worldwide by businesses, educational platforms, companies, government agencies, and even the army. However, as with any good thing, the internet also has its negatives as well. It can facilitate many illegal acts like terrorism, drug sales, trafficking, etc. Owing to these problems, it became necessary for governments around the world to maintain control over the content displayed on the internet. Such control is a necessary evil, for it restricts the usage of the web but protects the State and its citizens from lawlessness. However, authoritative regimes like the governments of China or North Korea often abuse this power and usually block citizens’ access to the internet to prevent dissent.2 Furthermore, in some democratic countries like India, the government misuses the power of regulating the internet to meet its own political agendas.3 In such States, such censorship becomes problematic as it contradicts the rights of citizens and democratic values. Internet shutdowns in India India is a form of Parliamentary democracy. In India, all the departments and the organs of the government derive their authority from the Constitution. In India, the Constitution is considered to be the grundnorm derive their authority from it.4 The Constitution gives citizens rights and curtails the government’s powers. But despite this, India performs poorly in the aspect of internet freedom. As per Freedom House’s internet freedom scores, India scored a measly 51 out of 100 points, placing it in the ‘partly free’ category. For reference, countries like the US and the UK, which are placed in the free category, have secured 76 and 79 points, respectively.5 Internet shutdowns are a frequent occurrence in India. In the last ten years, there have been 759 instances of internet shutdowns in the country. Jammu and Kashmir has been the worst region in this regard and has had a total of 424 shutdowns. The longest shutdown of 4G internet services has been for a period of 552 days in the Union Territory of Jammu and Kashmir after the abrogation of Article 370 on August 4, 2019.6 After the snapping of the internet services, the streets in Srinagar were filled by worried freelancers and business owners, not expecting the internet to be restored soon. Some questions may be raised here: How can the internet be suspended if the Constitution provides for freedom of speech and expression? And is there any remedy available to the people in such a case? To answer these questions, we need to analyse the Constitution as well as the other laws which are used for the suspension of the internet. Internet Shutdown and the Laws Before delving into the laws that empower the government to impose sanctions on internet usage, we first need to understand how the right to the internet is provided to the citizens of India. In this regard, two articles of the Constitution of India are of utmost importance: Articles 19 and 21. These two articles are in Part III of the Constitution, which comprises the Fundamental Rights. Article 19(1)(a) provides that every citizen of India shall have the freedom of speech and expression.7 To express oneself properly, one needs to have proper information about a subject matter. Thus, it has been held by the Indian Supreme Court in many cases that Freedom of Speech and Expression also includes the right to acquire information. In State of Uttar Pradesh v. Raj Narain,8 the Supreme Court held that “Article 19(1)(a) not only guarantees freedom of speech and expression but also ensures and comprehends the right of citizens to know, the right to receive information regarding matters of public concern.” Similarly, in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal,9 the Court, while commenting on the scope of Article 19(1)(a), held that Freedom of Speech and Expression also includes the right to receive and disseminate information.” As the internet has become an indispensable tool to receive information as well as a readily available and cheap tool, which in many cases is the only source of information for the poor, the suspension of the internet would lead to a violation of Article 19(1)(a). Another sub-clause of Article 19 – 19(1)(g) ensures that every Indian citizen shall have the freedom to practice any profession or to carry on any occupation, trade, or business.10 The internet is integral to many businesses, like e-commerce platforms and freelancing. With the suspension of the internet, all these professions and businesses come to a halt and, thus, leads to a violation of Article 19(1)(g). The internet shutdown in Jammu and Kashmir caused losses to many business owners, and many freelancers became unemployed.11 Freelancers usually have deadlines to meet, so even suspension of the internet for small periods can cause them significant losses. Finally, Article 21 provides that no person shall be deprived of his life or personal liberty except by the procedure established by law.12 The Maneka Gandhi case broadened the scope of this Article, and if any right is not expressly mentioned in the Constitution but is related to any other right, the Courts have the power to incorporate that right under Article 21 of the Constitution.13 The internet has become an integral part of our lives, and all people are dependent upon it for something or the other. For this reason, it is logical to consider that the internet is also a part of liberty and dignified life under Article 21. In Faheema Shirin RK v. State of Kerala,14the Kerala High Court held that “Right to access the internet is an integral part of Right to education and Right to Privacy under Article 21A and Article 21 of the Constitution of India, respectively.” Therefore, by the analysis
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