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 of the Articles, it would seem that an internet shutdown should not be possible as it violates the Fundamental Rights of the people.

However, the Fundamental Rights in India are not absolute. Article 19(2) empowers the State to impose reasonable restrictions on Article 19(1)(a), and Article 19(6) empowers it to impose restrictions on Article 19(1)(g).¹⁵ Similarly, for the violation of Article 21, it is necessary that it should not be caused except by the procedure established by law.¹⁶ If the procedure is established by law and is just, fair, and reasonable¹⁷ then restrictions can also be imposed on Article 21. Due to such restrictions, it becomes permissible for the government to restrict the internet during necessary times to prevent a breakdown of law and order. In India, both wired and wireless internet and all other telecom services come under the purview of the Indian Telegraph Act, 1885. Section 3(1AA) of the Act defines ‘telegraph’ as ‘Any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.’¹⁸ The internet is provided by telecom services, which allow the transfer of signs, signals, writings, images, sounds, etc., through either wires or electromagnetic waves. Therefore, telecommunication services fall under the purview of the Indian Telegraph Act. Section 7 allows the Central government to make rules for the conduct of telegraphs in India, and subclause 2a of the section gives the said government the power to make rules relating to restrictions on transmitting messages.¹⁹ In the exercise of these powers, the Central Government enacted the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The Rules empower the Central or State Governments to temporarily suspend telecom services due to public emergency or public safety. As per Rule 2(1) of the Rules, the suspension of telecom services can only be ordered either by the Secretary to the Government of India in the Ministry of Home Affairs in the case of the Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government.²⁰ The rules also provide that in unavoidable cases, suspension can also be ordered by an officer, not below the rank of a Joint Secretary to the Government of India, whom the Union Home Secretary or the State Home Secretary has duly authorised.²¹ Thus, the internet in India is suspended due to limitations on Fundamental Rights and through the laws enacted by the Parliament.

Conclusion

The laws to regulate and suspend the internet are definitely necessary in order to prevent online illegal activities that may affect law and order. However, there are many problems with the Indian laws in this regard. The Constitution speaks of reasonable restrictions on Fundamental Rights. But what would amount to reasonable differs in each case. This fact is often misused by governments that try to prevent even democratic activities like online protests by naming them threats to national security. Again, whether it would be reasonable or not to impose restrictions would be decided by the Court, and in most cases, the government gets away with blocking the internet. Even if the Court decided that the restrictions were unreasonable, the damage would have already been done as the internet would have already been suspended. This mechanism gives too much power to the government and is not favourable in a democracy. Similarly, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 provide for the temporary suspension of telecom services only. But what length of time would be called temporary is again not defined. By using the abovementioned rules, the government suspended internet services for about five months in Jammu and Kashmir.²² The suspension would probably have continued longer unless the Apex Court had interfered in Anuradha Bhasin v. Union of India.²³ The Court held that “An order suspending internet services indefinitely is not permissible.” What would be a reasonable time for which the internet should be suspended again depends on each case, but it is not permissible to indefinitely suspend the internet. Such ambiguity gives the government an upper hand in violating the rights of the citizens. Therefore, changes should be made to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. A maximum time limit should be provided for which the internet could be suspended, beyond which it should require the sanction of the legislature. The judiciary also has to play an active role in determining the scope of reasonable restrictions. If the reasonableness is challenged, the judiciary should provide a forum for quickly dispensing such cases to mitigate the negative effects of suspension. With the introduction of new technologies like AI, Blockchain, AR etc., the internet will likely play a bigger and bigger role in people’s lives. But we won’t be able to take the maximum benefit from these new technologies unless internet freedom is achieved.