Constitutional “Vaccination” against Internet Shutdowns: Supreme Court says Access to Internet is a Fundamental Right
The Internet is rapidly becoming an integral part of our lives and a place where one can exercise one’s freedom of speech and expression guaranteed under Article 19 of the Constitution of India. Today, professional practice, trade and businesses are to a large extent internet-based. Online business is booming: tickets for airlines, train journeys, cinema and music shows, museum visits, taxis, doctor visits, hotels and what not. Therefore freedom of trade and commerce through the medium of internet is also constitutionally protected under Article 19 (1)(g) of the Constitution of India. However, recently the internet has been subjected to unexplainable shutdown by the State. India is currently the leader of the world in conducting internet shutdowns, with 106 internet shutdowns in the year 2019 alone. Internet services were suspended in Jammu and Kashmir for over 150 days — since the abrogation of Article 370 on August 5, 2019.
2. Meaning of Internet Shutdown
Internet shutdowns are absolute restrictions put on by the government to prevent people from accessing internet services. Internet shutdown may be limited to a specific place, specific period and on the type of transmission services. Sometimes in extraordinary situations, it can even extend indefinitely. Internet shutdown is sometimes also referred to as “internet kill switch” or “digital curfews”
Internet shutdowns or blackouts can be classified in two categories:
1. Total shutdown –
This means that the internet is no longer working. All internet services are completely blocked including broadband services as well as mobile data services. This type of internet shutdown is generally regional or countrywide and people are unable to go online on any device.
2. Partial shutdown –
In a partial shutdown, the government restricts your access to certain apps or websites. This is generally done to stop people from sharing information with others.
The Center for Internet & Society, Bangalore in its 2016 report has identified six categories of disruptions:
- National internet shutdown: When the internet services are snapped across the nation.
- Sub-national internet shutdown: When the shutdown is limited to a specific state or a region.
- National mobile internet shutdown: When access to the internet on mobile devices is blocked throughout the nation.
- Sub-national mobile internet shutdown: When access to mobile internet is blocked in a specific state or a region.
- National app/service shutdown: When access to a mobile application or mobile service like SMS is blocked across the nation.
- Sub-national app/service shutdown: When access to a mobile application or mobile services is blocked in a specific state or a region.
3. Provisions for internet shutdown in law
In August 2019, the government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules under the Indian Telegraph Act, 2017, which lays down the procedure to put the restrictions on internet access. Prior to the promulgation of the Temporary Suspension of Telecom Services Rules (hereinafter, the Suspension Rules), Internet shutdowns could have been ordered under two legislations, i.e. Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885 (ITA).
Internet shutdowns could be ordered by police officials of district magistrates under Section 144 of the CrPC, which provides district magistrate the powers to issue directions to maintain public order in areas falling under their jurisdiction. Section 144, which has become infamous for its indiscriminate use to suppress anti-CAA protests, and as it gives wide discretionary power to the state to freeze the civil liberties.
4. CONSTITUTIONALITY OF INTERNET SHUTDOWNS
4.1 Internet shutdown and freedom of speech and expression
The Internet is not only a medium to exercise one’s right to free speech, expression and dissent, but it is correctly identified as a catalyst in the process of imparting, receiving, and sending information to masses. This freedom is without a doubt a fundamental aspect for a democratic organization, moreover it is an enabler of other socio- economic and cultural rights. Similarly, the Internet plays a key role in facilitating a wide range of rights by providing a revolutionary platform in realization of free speech.
Frank La Rue, the Special Rapporteur on protection and promotion of the right to freedom of opinion and expression appointed by the United Nations, while focusing on the right to access to the internet as a basis right of an individual, also highlighted the changing nature of this right in relation to Internet proliferation. Further, while addressing concerns about censorship, the Special Rapporteur noted that arbitrary blocking of complete Internet services in a region is a disproportionate action in any situation. Internet shut down even with justification, negates the possibility of targeted filtration of content and would render inaccessible even content that is not illegal.
4.2 Indian judiciary on constitutionality of internet shutdowns
In Faheema Shirin v State of Kerala and Ors It was observed by P.V Asha, J ‘Right to Internet Access’ is a fundamental right which cannot be taken away arbitrarily. The Court declared that the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.
“The usage of mobile phones to enable students to have access to Internet will only enhance opportunities of students to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education,” the verdict said and quoted SC rulings that freedom of expression included the right to be informed, the right to know and feeling of protection of “expansive connectivity”. Authorities could act on complaints of misuse of phones and laptops, but a total restriction on their use was “unwarranted,” the high court said. “When the Human Rights Council of the UN has found the right to access to the Internet is a fundamental freedom and a tool to ensure right to education, a rule which impairs such a right of students cannot be permitted to stand…” the High Court further observed.
The Supreme Court has on many occasions expanded the scope of the right to freedom of speech and expression. The latest expansion makes the constitutional provision keep pace with innovation of technology. The Internet is the primary source of information to millions of Indian citizens. A non-citizen can avail the same benefits but cannot claim it as her fundamental right
In Anuradha Bhasin vs Union of India on 10 January, 2020, the Apex Court observed:
- “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade,business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality,” the court said in its ruling on a batch of petitions challenging the restrictions.
- “In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localised/limited e-banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately. The power under Section 144 Criminal Procedure Code, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger.”
- “An order passed under Section 144, CrPC should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order… Repetitive orders under Section 144, CrPC would be an abuse of power. The prohibitory orders issued under Section 144, CrPC, cannot be used indefinitely to suppress freedom of speech and expression. Such orders can’t be used to suppress legitimate expression, and their use needs to be justified by concerns of immediate violence”
- The right to access the Internet is a fundamental right under Article 19 of the Constitution, and total shutdowns are “drastic” measures that should be considered only when “absolutely necessary”, the Supreme Court said.
In present times, most of the activities are done by way of online means, and the activities which are left have the capacity to be introduced to electronic media and work well. In such an era, where technology is considered as the next big thing after the invention of fire and wheel, if the people would be deprived of internet services on purpose, then it would be considered nothing but violation of fundamental rights of the citizen. Thus, internet shutdowns must be conducted by the government alone, and even that too, under extraordinary circumstances.
- Criminal of Criminal Procedure, 1973.
- Indian Telegraph Act 1885 (ITA).
- Indian Telegraph Act 2017 (ITA).
- The Constitution of India
- All India Reporter
- Supreme Court Cases (SCC)
- What is the internet shutdown?
- What are the different types of internet shutdowns?
- Under what provisions of law, internet shutdown could be administered?
- Explain the relationship between speech and expression and the right to access the internet.
- Is right to internet access a fundamental right under the Constitution of India?
 AIR 2019, KHC 220.
 WRIT PETITION (CIVIL) NO. 1031 OF 2019.