Internet Shutdowns: Strategy to Maintain Law and Order or Muzzle Dissent?

"The city from where no news can come
is now so visible in its curfewed night…"

(Agha Shahid Ali, “I see Kashmir from New Delhi at Midnight”)

“In exercise of the power conferred upon me by virtue of section 144 of the Code of Criminal Procedure, 1973. I, XX (Name of the officer), IAS, District Magistrate, YY (Name of the District) do hereby order immediate stoppage of the internet services (2G, EDGE, 3G, 4G, GPRS) and bulk messages provided on mobile networks in the territorial jurisdiction of YY District, ZZ ( Name of the State).” 

Similar-sounding orders, more or less following the template mentioned above, often invoking powers mentioned in Section 144 of Code of Criminal Procedure (CrPC), 1973 have frequently been issued by several district magistrates in different parts of the country, over the past few years. In newspaper parlance, these are often termed as “internet shutdown orders.” 

Internet shutdown refers to a deliberate suspension of internet services in a limited area, for a given amount of time, usually on the orders of the government. In 2016 and 2017, India reported the highest number of internet shutdowns in the world (Kaur 2017). Recently, six states, including West Bengal, Jammu and Kashmir, Uttar Pradesh, Madhya Pradesh, Punjab and Rajasthan, had issued shutdown orders to deal with various law and order situations (Saikia 2018). 

Internetshutdowns.in, a website that is tracking the instances of internet shutdown in India since 2012, has reported 162 shutdowns as this article is being written[1]. A closer study of the data published on internetshutdown.in reveals that out of the 162 shutdowns recorded, 73 were in the state of Jammu and Kashmir alone. A report published by Software Freedom Law Centre (SFLC) showing details of instances of internet shutdown reveals that in 2012 and 2013 internet shutdown, as a preventative strategy to maintain law and order, was only used in Jammu and Kashmir.  It was adopted on a pan-India scale only after 2014, where it was extensively used in Rajasthan, Haryana, and Gujarat during Patel and Jat agitations.

In Gujarat, it was even used as a measure to control cheating in exams (Hindu 2016).  Seeing the broad trends, as briefly sketched out above, it is hard to miss the fact that internet shutdown in the current context seems to be a strategy to maintain law and order, and muzzle dissent. This strategy was first developed, experimented and practised in “disturbed” areas like Jammu and Kashmir. Since then, it has become part of the standard toolkit of the Indian state to deal with various challenges it encounters on a daily basis.

Why Should We Worry about Internet Shutdowns? 

With the recent advances in telecommunication technology and its increasing availability to the masses at low costs, globally speaking, the internet in the past few years has become a great enabler for people to exercise various fundamental rights, such as the right to free speech, right to associate, right to practise any profession, right to access information, and right to education. In simplifying and fastening communication, internet has played a significant role in facilitating people to mobilise, voice their concerns, and bring about a political change. The “Arab Spring,” “Sunflower Revolution,” “Jan Lokpal” movement, Washington’s Women’s March, and #MeToo campaign are a case in point. Internet-enabled services like online shopping, cab services, food delivery, online courses, have opened up huge business and educational opportunities for people. In short, internet is quickly becoming a very integral part of life for many people.

United Nations Human Rights Council has noted the potential of internet as a great enabler for humans to achieve the ideals of freedom and progress. It has on several occasions reiterated that access to internet is a human right (Mawii et all 2018). In 2016, in accordance with Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, it affirmed: 

“The same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.” 

In the same document, the council unequivocally condemned the measures to deliberately prevent or disrupt access to or dissemination of information online and deemed it to be in violation of international human rights law. The Constitution of India, through Article 19, subjected to some reasonable restrictions also protects certain rights of all the citizens, like freedom of speech and expression, to assemble peaceably without arms, to form associations, and to practise any profession, or to carry on any occupation, trade and business. The right to education and right to access information have been recognised as fundamental rights by the Supreme Court and Parliament as well. The current government’s flagship programme, the “Digital India” campaign too recognises the potential of internet in improving governance. It aims to empower the citizen digitally by providing universal mobile connectivity and public internet accessibility, thus making internet an important medium for the citizen to access public services.

Given the essential nature of the internet in the current context, whenever an order of internet shutdown is passed anywhere in the country, a citizen’s ability to exercise the rights mentioned above is severely sabotaged. Various newspaper reports and studies by non-governmental organisations (NGOs) have narrated tales of how everyday lives of people are severely disrupted during a complete or partial shutdown. People are unable to fill online forms for admission, apply for jobs, access important information, access health services, book tickets, conduct online business transactions and communications, contact their family members and colleagues among several other things (Mawii et all 2018). Studies have estimated huge economic impact of temporary internet shutdowns on India due to reduced economic activity (West 2016). Apart from financial losses, studies have also shown an adverse psychological and social impact of internet shutdowns, demotivating citizens by increasing the feelings of isolation and exclusion in them (Mawii et all 2018).

Are Internet Shutdowns Legal?

Given the adverse impact of internet shutdowns on the various fundamental rights, it is important to ask if it is legal and constitutional to pass these shutdown orders? How does the government justify these orders? Has there been any challenge to these powers in the court? 

Contractual obligations: There are several provisions in the Indian legal regime that justify the government’s action of banning internet services. The first level of “safeguarding” is embedded in terms of the contract itself. Internet and mobile service providers often have to sign contracts with the government that contain certain security conditions that give the government powers to suspend services through appropriate notifications and make it obligatory for the provider to comply with such notifications (Narrain 2018). For example, the following is a condition in the License Agreement for Unified License’s section 39.15 and License agreement for Provision of Internet Service’s section 34.9[2]: 
“The Government through appropriate notification may debar usage of mobile terminals in certain areas in the country. The LICENSEE shall deny Service in areas specified by designated authority immediately and in any case within six hours on request. The LICENSEE shall also provide the facility to carry out surveillance of Mobile Terminal activity within a specified area.” 

Nakul Nayak (2015) has observed that this clause does not specify the word “government.” It is unclear to us whether state or central or both governments have the power to issue these appropriate notifications. The Indian Telegraph Act, 1885[3], that empowers the government to issue such licences, in section 5(2), mentions that both central and state governments, in the event of public emergency and public safety, in the interest of restrictions mentioned in Article 19(2) may issue an order to stop the transmission, and interception of messages. Though not crafted specifically for the internet, this act using its expansive colonial vocabulary opens up hermeneutic spaces that give the state enormous powers to justify its actions.

Section 144: In the aftermath of the Patel agitation in Gujarat in 2015, Gaurav Sureshbhai Vyas, a student of law approached the Gujarat High Court, demanding the court to declare the act of banning mobile internet by the state authorities during the Patidar Andolan riots, as void ab initio, ultra vires and unconstitutional (Gaurav Sureshbhai Vyas vs State of Gujarat 2015). He argued that the act of banning mobile internet was violative of Article 14, 19 and 21 of the constitution[4] and thus also demanded the court to issue an appropriate writ to permanently stop the state and officers to impose such a ban. The petitioner argued that the state could have blocked certain websites using the powers under Section 69A of the Information Technology Act, 2000 and there was no need to invoke the powers under Section 144 of the Code of Criminal Procedure, 1973 to impose a blanket ban on the use of mobile internet. The court dismissed this petition by agreeing with the defendant that given the uncertain riot situation on the ground during the Patel agitation, the state authorities under section 144 of the Code of Criminal Procedure, 1973 had the powers to take actions that they deemed fit to maintain public order and peace. 
Section 144 is the most frequently invoked legal measure by the Indian state to impose a complete or partial ban on internet services. Like the Indian Telegraph Act, 1885, Section 144 of the CrPC is another colonial relic, which through several amendments has survived in the postcolonial Indian legal regime. Notorious for being invoked to deploy curfews, this section has had a long and diverse life in India. The Indian state has used its powers to pass various types of orders. Its constitutionality has been challenged in the higher judiciary on several occasions, but the courts have consistently upheld it and have crafted no principles that could be used to guide its exercise.[5] 

If one closely reads the language of this provision, it has been crafted to deal with urgent situations where danger is apprehended and is envisioned to provide a speedy remedy in such circumstances. It empowers the district magistrate, subdivisional magistrate and any other executive magistrate empowered by the state government to issue orders. 

The sections states: 

“(Officers may) direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.”

It is important to note that the section uses the words “likely” and “tends” and thus opens up room for interpretation and exercise of arbitrary power by the executive. It might be possible that directions issued under this section may not play a direct and substantial role in the prevention of the apprehended danger, but may still be passed and deemed legal because this section allows for making loose connections between the order and apprehended situation, because of the words “likely” and “tends.”[6]

Another aspect to be observed is the use of the words and phrases like “obstruction”, “annoyance,” “danger to human life,” “health and safety,” “public tranquillity,” “riots” and “affray.”

The use of Section 144 in imposing internet shutdowns has adverse effects on various rights protected under Article 19 of the Indian Constitution. It is important to note that none of the phrases deployed in this section match up with the reasonable restrictions mentioned in Article 19(2), 19(3), and 19(4).  

Supreme Court in Shreya Singhal vs Union of India (2015) had ruled Section 66A of the IT Act as unconstitutional because the language provided did not match with the reasonable restrictions mentioned in Article 19(2).[7] Section 66A was thus found to “over-broad” and suffering from the vice of vagueness. The court in its judgment noted that “the anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression …. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.” This was a landmark judgment and gave out a message that until absolutely necessary, the right to free speech and expression cannot be taken away from the Indian citizen. 

However, while reading Section 144 with the Shreya Singhal case, it becomes clear as to how the loose architecture of Section 144 allows the state to impose internet shutdowns in situations of varying degrees like caste riots and exams. At the same time, it shows how the act of imposing internet shutdowns disproportionately punishes even the speech protected under the Constitution. 
Another aspect of Section 144 is Clause 4 of the section. It addresses the temporal aspects of the orders issued by invoking powers residing in section 144 and fixes the expiry date of an order for a period of two months from the date of issue. It further gives the state government powers to extend the orders for a period of another six months, if it deems fit. Time forms an important dimension when one is deliberating on how “temporary” these shutdown orders really are. While most of the shutdown orders are issued for a period of less than 72 hours, there have been incidents where internet shutdown orders have been enforced for a period of more than three months (SFLC 2017).    

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017: The latest tools in Indian state’s kitty to legally justify internet shutdowns are Temporary Suspension of Telecom Services Rules, 2017. Issued in 2017, without any public consultation, these rules are being seen as state’s response to the mounting criticism it has been facing for the arbitrary nature of internet suspension orders using Section 144. Though these new rules introduce a set of checks and balances, it should be noted that they simultaneously also cement the position of internet shutdowns as a policing strategy for controlling law and order in situations of need. 

The new rules are issued under Section 7 of the Indian Telegraph Act, 1885. The first check that these new rules establish is by giving powers to higher authorities to issue internet shutdown orders. In Section 144, we had seen the district magistrate and sub-district magistrate had the powers to issue these shutdown orders. According to the new rules, only the secretary in the Ministry of Home Affairs (central government) and the secretary to the state government in-charge of the the Home Department (state government) have been given the powers to issue these orders. In cases of emergency, the order can be issued by an officer of the rank of joint secretary or above who has been duly authorised by the union home secretary or state home secretary, which has to be confirmed by the above two mentioned authorities within 24 hours.  

The second check instilled by these new rules is the establishment of central and state level review committees, which will receive these suspension orders in the next working day of the date these orders are issued. They will conduct a meeting within a period of five days to judge the credibility of the order against Section 5 of the Indian Telegraph Act, 1885. These committees are composed of highest level officers of central and state government, including cabinet secretary (central) and chief secretary (state). This seems to be a system put in place to regulate motivations and temporal aspects of internet shutdown orders. Section 144 had lacked these mechanisms and gave officers enormous powers to impose shutdown orders for long periods of time. 

Under these rules, an office of the nodal officer is also established in every licensed service area, adding another layer of check and balance. These officers will be appointed by telegraph authority and service providers and will receive and handle the suspension orders. By designating these fixed points, of who has the power to pass, receive and handle such orders, these new rules attempt to regulate the procedural aspects of internet shutdown orders by adding bureaucratic layers. It should be noted that no aspect of these new rules, tries to change or strengthen the substantive element of internet shutdown orders. It uses broad and undefined terms like “public emergency” and “public safety” (Narrain 2018) and relies on Section 5 of Indian Telegraph Act, which is also defined by its loose architecture. It also needs to be highlighted that availability of these new rules, does not mean that use of Section 144 is now illegal to issue internet shutdown orders. What we have seen is a co-existence of these two legal provisions. 

Where Do We Go from Here?

Conceptually speaking, public safety and law and order vs free speech and other fundamental rights, is a conundrum that liberal democracies have been facing since their inception in various forms. The medium of the internet lends its own complexities to an age-old problem. Lawrence Lessig (2006), in his remarkable book, Code: Version 2.0, pointed out that there was nothing natural about the internet, and it was primarily a constructed social space. The fact that it appears ungovernable or unregulable, he argued, is because it has been designed that way. There was, however, no reason to believe that it cannot be designed or coded in ways that respect and protect the values that a society or government or private entity cherishes. Maybe, this crucial insight into the very architecture of the internet can point us towards directions where we can at least attempt to reduce the collateral damage to fundamental rights, and economy while ensuring peace and tranquillity. Instead of banning, perhaps coding it in ways that inhibit the circulation of hateful and inciting content, in hours of need can provide possible answers. Individual websites can be asked to formulate stricter user guidelines to control such menace. Siddharth Narrain (2018), by narrating a tale of Pune-based Social Peace Force (SPF) Facebook group, has pointed out the role that civil society can perform in hours of crises in flagging, reporting, and bringing down hateful content on the internet. Though community-based swift responses can be viewed as another form of vigilantism, it seems to have worked in that context. While a lot can be done in realm of internet, at the same time, laws and rules can be chiselled further to align with the text of the Constitution. There are no easy and universal answers to the problem we face in the name of internet shutdowns.