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The Right To Internet Access: Analyzing Legality Of Internet Shutdowns

On 10 January 2020, the Supreme Court of India declared in Anuradha Bhasin v. Union of India that the fundamental rights exercised on the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) and restriction of such rights must be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.[1] On May 11 2020, in Foundation for media professionals v. Union of India,[2] it upheld the earlier judgement and found evidence provided by the attorney general sufficient to establish that the Government has constituted a review of the committee as ordered thus disposed of the petition.

This is not the first time that Indian courts have held that the right to access the Internet is a fundamental right. Judicial review of the procedure to issue orders to telecom operators to shut down the Internet and other networks in specific regions has been found constitutionally sound yet governments- both Central and State- continue to exercise their power without following due procedure thus impeding peoples right to access the Internet. This has a damaging effect on the fundamental rights and the economy of the state, and the country at large, especially as the global civilization braces itself for a digital revolution.

The legal and rights implication of ordering Internet shutdown is a growing field of study in India but with little attention paid to its findings even as reports by Human rights watch and other organizations consistently place India at the top of the list of countries whose governments order network disruptions. Temporary suspension of Telecom services (public emergency or public safety) Rules 2017 itself emerged out of an increased number of Internet and telecommunication shutdowns throughout the country.

The need for such scrutiny is particularly relevant in the light of the growing number of state governments resorting to cutting access to the Internet as it constitutes a threat to exercise fundamental rights in an increasingly digital world, especially in recent times, during an ongoing pandemic.

This paper analyses the legal authority of the government to order Internet shutdowns and argues that the current legislation is too opaque allowing government power to arbitrarily cut off the network. To do so the paper studies the legislation and case laws enacted by the government of India on the same. It concludes by finding that lack of transparency in the procedure to issue and review such orders has led to government unaccountability which must be remedied by a more open process and increased awareness of the same.

This paper proceeds in three sections. The first section establishes a right to access the Internet is subject to reasonable restrictions, as nestled within a holistic reading of Faheema Shirin v. the State of Kerala[3] in connection with constitution Article 19 (2) and (6).

The second studies restriction to this right to access the Internet as provided in legislations namely the Telegraph Act 1885, Information Technology Act, 2000, Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Temporary suspension of Telecom services (public emergency or public safety) Rules 2017 and section 144 of the code of criminal procedure, 1973. The third analyses the gap in the execution of law through PILs on the same and suggests some measures to ensure transparency in the process.

For this paper, an internet shutdown is defined as an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.[4]

Internet for today and tomorrow
In the information age and at the cusp of the fifth industrial revolution, the Internet continues to transcend boundaries and become increasingly vital for development. In 2016, 3.4 people were online of which China has 746.66 million users and India has 391.26 million.[5] Despite only 26% in India having internet connections via various computer devices, Indias Internet economy is expected to touch USD 250 billion in 2020 (7.5% of GDP), driven by explosive growth in data consumption.[6][7]

The rapid growth in the development of Internet technology and its impact on human life was reflected in a statement released by UNHRC in 2014 in which it endorsed the right to the Internet to be recognized as a fundamental human right. In 2016 the UN General assembly passed a resolution on the promotion, protection, and enjoyment of human rights on the Internet, in which it said that access to the Internet is a fundamental right and urged member nations to make policy decisions to ensure more people get access to the Internet.[8]

The language of the resolution implied it condemned any unreasonable and arbitrary restriction to access to the Internet as a violation of fundamental rights, mainly the article 19 of the UN declaration of human rights. This came at a time when half the population of the world was still offline.

Could the Internet still be considered a right when half the humankind did not have access to it? This set off a debate in various circles with some countries supporting the resolution while countries like China, Russia and India opposed it. Vinton Grey Cerf, one of the fathers of the Internet, wrote in an article in the New York Times, technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right.[9]

While everyone agrees with the Internets role in future economic and industrial progress, its role as civil liberty remains contested. The Internet via social media gained an important social value as people, for the first time, could exercise their fundamental right to freely express themselves, to access information, education, health care and create business across and beyond territorial boundaries.

The Internet's role in policy decisions and politics have been most notably marked since the 2004 Global forum on Internet governance where the UN has invited member nations to decide on a common structure for internet governance. It is in light of these developments that the Internet shutdowns in times of political crisis should come as an alarming shock to the free world.

Network disruptions today are most common in Asia and Africa. India is crowned the global leader in Internet shutdowns. In 2018 among 25 countries, India had a staggering 134 documented shutdowns topping the list followed by Pakistan with 12 documented shutdowns.[10] In the year 2019 among 33 countries, India had 121 documented shutdowns followed by 12 shutdowns recorded in Venezuela.[11] Most of the affected countries are democracies under authoritarian rule or democracies in transition. Indias name featuring at the top of the list should be worrying for the population of the worlds largest democracy.

Shutdowns have unreasonably deprived people of their rights albeit temporarily, alongside huge economic losses. A report by the Brookings Institute aimed to quantify the losses suffered by various countries due to such internet disruptions and concluded that these disruptions cost countries a total of at least US$2.4 billion in 2016, with impact ranging from US$968 million in India to US$313,666 in North Korea.[13]
1. Establishing A Right to Access the Internet
  Access to the Internet is crucial for healthy exercise of fundamental rights in a free world as recognized by UNHRC in the promotion, protection and enjoyment of human rights on the Internet, 2016.[14]
  
  Relevant portions read as follows:
  Recalling all relevant resolutions of the Commission on Human Rights and the Human Rights Council on the right to freedom of opinion and expression, in particular, Council resolution 20/8 of 5 July 2012 and 26/13 of 26 June 2014, on the promotion, protection, and enjoyment of human rights on the Internet, Noting that the exercise of human rights, in particular, the right to freedom of expression, on the Internet, is an issue of increasing interest and importance as the rapid pace of technological development enables individuals all over the world to use new information and communication technologies, Deeply concerned also by measures aiming to or that intentionally prevent or disrupt access to or dissemination of information online, in violation of international human rights law.
  
  In Vishaka v. State of Rajasthan, the court stated that in the absence of domestic law, international conventions and norms are to be read into the fundamental right guaranteed the constitution provided there is no inconsistency between them. [15] Applying the above dictum Kerala High Court in Faheema Shirin v. the State of Kerala held access to the Internet as part of the right to education and right to privacy under article 21 of the Indian constitution. [16]
  
  Referring to the above case, in Anuradha Bhasin v. Union of India, judgement by N.V. Raman declared:
  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.[17](page 127-28)
2. Reasonable Restrictions and Test for Proportionality
  Reasonable restrictions to the fundamental right to express freely and right to practice any profession are detailed in Article 19 (2) and (6) respectively:
  (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to.
  
  When the apex court had to consider the question of curtailing rights to maintain national security and for larger public interests it asked authorities to apply the test for proportionality along with application of mind to have least restrictive measures in place to be effective to achieve the aim of maintaining national security, integrity and wellbeing of the larger public good.
  
  The test of proportionality is outlined by Justice Sanjay Kishan Kaul in K.S. Puttuswamy v. Union of India as follows:
  1. The action must be sanctioned by law;
  2. the action proposed must be necessary to achieve a legitimate aim;
  3. the the extent of such interference must be proportionate to the need;
  4. the procedures must provide guarantees against the abuse of rights under such interference.[18]
  The Supreme Court after recognizing the above test for proportionality in Anuradha Bhasin v. Union of India, it summarized the stages of the test stating that authorities must consider alternatives to imposing restrictions on fundamental rights to achieve a "legitimate" aim. The appropriates of the measure depends on its implication on fundamental rights. Measures should be least restrictive taking into consideration facts and circumstances supported by sufficient material amenable to judicial review.[19]
Existing legislation to order Internet shutdown
The existing legislation to order internet shutdowns is mainly the Telegraph Act 1885 and the Information Technology Act 2000 with review processes detailed in later amendments of these acts. Apart from these, section 144 of the code of criminal procedures gives Magistrate wide powers including the power to shut down the Internet.
1. The Telegraph Act 1885 And Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017
  Telegraph Act, 1885, gives power to governments to shut down the Internet in specific regions under specific conditions. Section 5(2) outlined that the central government or state government (or officer authorized by it) if satisfied that it is necessary for the interests of the sovereignty and the integrity of India, the security of the state, friendly relations with foreign states, for public order or for preventing incitement to commit any crime with reasons to be recorded in writing may order a shutdown of telecom services, except that of journalists unless prohibited as per this section.
  
  Temporary suspension of Telecom services (public emergency or public safety) Rules, 2017, established process to review orders issued under the Telegraph Act. Section (2) provides the procedure to check that the order is authorized by the component authority. Furthermore, subsection (6) it outlines the procedure to review the order to ascertain if it is consistent with conditions established in the Telegraph Act under which such orders can be issued.
  
  Relevant sections read as follows:
  2. (2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day.
  
  (6) The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the said Act.
2. Information Technology Act 2000 And Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009
  Governments have the authority to order access to specific websites online or apps on computer devices under section 69A of Information Technology Act, 2000.
  
  Subsection (1) empowers the central government or state government (or officer authorized by it) if designates it necessary in the interests of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, for public order or for preventing incitement to commit any crime with reasons to be recorded in writing may order blockage of public access to any information generated, transmitted, received, stored or hosted in any computer resource.
  
  Subsection (3) details penalties to be awarded to intermediaries who fail to comply with the order. Imprisonment of a maximum term of seven years and also liable to pay fine.
  
  Though phrases like security, integrity and sovereignty mentioned in the above legislation could be broadly interpreted which could lead to abuse of power thus legislators acknowledged the need for a review process to be in place. Procedure for review of orders issued under section, 69A is detailed in the Information Technology (procedure and safeguards for blocking for access of information by public) Rules, 2009.
  
  Section (8) of Information Technology (procedure and safeguards for blocking for access of information by public) Rules, 2009, details examination of request to order a blockade of telecom services and network connections. Designated officers (as defined in the Act) shall identify and issue a notice to the person or intermediary who is hosting information or part thereof which needs to be blocked to appear and submit reply and clarifications, if any, before the committee within a period not less forty-eight hours from the time of issuing the notice.
  
  The procedure to constitute a review committee is detailed in subsections (4) to (6). The committee shall examine the request and furnished information to consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act.
  
  Unlike the Telegraph Act 1885, the above-mentioned acts and rules empower the state to block only specific information on the internet. These provisions have been recently applied to block over 100 Chinese apps in the interest of national security.
3. Section 144 of The Code of Criminal Procedure 1973
  In addition to the above-mentioned legislation deal specifically with Internet and other network blockades as measures necessary under conditions as detailed under various subsections, section 144 of the criminal code of criminal procedure, 1973, gives District Magistrate, a sub-divisional Magistrate or any other Executive Magistrate specifically empowered by state government wide powers to take measures restrictive of fundamental rights including the shutdown of the Internet.
  
  The relevant portion of the section read as follows:
  144. Power to issue order in urgent cases of nuisance of apprehended danger.
  1. … there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act … 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 tranquillity, or a riot, of an affray.
  2. An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
  Unlike the other legislations, the language in section 144 allows a broader interpretation of urgent cases that require extreme measures such as shutting down the internet. However, this is balanced by the need to state material facts of the case. The Supreme Court in Anuradha Bhasin v. Union of India held that before issuing the order the Magistrate must apply the test of proportionality to balance fundamental rights against ensuring security. Also, it added that orders thus issued can be challenged in the court for judicial review as guaranteed by the constitution in article 32 and article 226.
  
  Corporations have been empowered by law to seek clarification of orders and receive replies in writing however many comply almost immediately as they fear losing their license for resisting government orders.[20]This fear can be understood as most of the shutdowns ordered are usually in smaller towns and cities.[21] The network operators there do not have sufficient resources to legally challenge orders as they find it significantly easier to comply even if it comes at an economical cost to them.
The Gap In Execution Of Law: Impact And Remedies
All the laws detailed in the previous section have been laid down procedures to review orders issued to cut off the network and have stood the test of judicial review multiple times once in Gaurav Sureshbhai Vyas v. the State of Gujarat[22] in 2015 and most recently in May 2020 in Foundation for media professional v. Union of India.

One of the most important aspects of January 2020 judgement is that the court dismissed the government's claim of privileges to not disclose orders issued and declared that governments must publish all orders under previously mentioned legislations in force. This was considered a big win for activists and organizations who have been painstakingly documenting shutdowns in the country with authorities unwilling to release the orders.

The unavailability of published orders made it almost impossible to challenge the order in court.

The reasons given by the government for shutting down the Internet vary from apprehended security reasons to prevent cheating in exams, the most popular being to main law and order in the region, however, activists are sceptical of the validity of these reasons.[23] Orders being made available through publication would allow for just scrutiny and judicial review when necessary.

The number of shutdowns in the country has spread across states with 23 of 29 state governments ordering shutdowns since 2012-19 thus illustrating the extent of the problem.[24] An overwhelming number of these were preventive and orders were not published despite the government having an obligation to do so. The very acts under which shutdown orders are issued mandate the authorities to release these orders in public.

This gap in the execution of law came at a large price. The report Anatomy of an Internet blackout: Measuring the Economic Impact of Internet Shutdowns in India (2018) by Indian Council for Research on International Economic Relations (ICRIER)[27] quantified the amount of economic damage caused. It reported that 16315 hours of Internet shutdown in India cost the economy approximately $3.04 billion during the period 2012 to 2017.[28]12615 hours of mobile Internet shutdowns in India cost the economy approximately $2.37 billion during the period 2012 to 2017.[29] 3700 hours of mobile and fixed-line Internet shutdowns in India cost the economy approximately $678.4 million during the period 2012 to 2017.[30]

It also recognized industries that suffered from such shutdown. Telecom companies have suffered because of underutilized capacity; an estimate from a telecom operator in Kashmir suggests that while average data consumption per user is about 1 GB per day, periods of intermittent shutdown bring down the average usage by 30-40 per cent.[31]

Apart from telecom other industries listed in the report are tourism (especially in Kashmir, Darjeeling and Rajasthan as Internet shutdowns are often issued along with restraint orders), e-commerce, press and news media professionals, education, health care and digital payments. Some businesses noted that 60-70% of payments made by customers are via POS machines, and not being able to serve them affected their businesses severely.[32]

The most practical remedy available is going to courts but the judicial review of orders has not been non-uniform in holding the authorities accountable. In Dhirendra Singh Rajpurohit v. State of Rajasthan order by the Rajasthan government to shut down the Internet to prevent cheating in exams was challenged in court.[33] The court took cognizance of the case and effectively remedied the situation by issuing orders to the government.

However, another PIL was registered by SFLC in Delhi to challenge the Deputy Superintendent of Polices order to shut down the Internet during the citizenship amendment act protests sought the court to declare the order void since Deputy Superintendent of Police is not a competent authority as mandated under the temporary suspension act. The court disposed of the PIL and was criticized for the same.

The lack of information allows governments to evade accountability as they refuse to publish orders to keep track of where, when and for how long a place was cut off from the Internet leaving them isolated from the rest of the country and world at large. To ensure transparency, the government should maintain an accessible portal where it informs the public about orders on shutdowns before carrying out the order.

In cases where time is of the essence, the government must publish the order in an accessible public forum preferably in print and ensure the public is aware of the situation. Additionally, the review committees reports must be available to the public for judicial review and general public knowledge.

Conclusion
This paper analyses the legal authority of the government to order Internet shutdowns and argues that the current legislation is too opaque allowing government power to arbitrarily cut off the network. Access to the Internet is a constitutionally protected right and is subject to reasonable restrictions under Article 19 (2) and (6). The access can also be curtailed under the Telegraph Act 1885, Information Technology Act, 2000 and section 144 of the code of criminal procedures 1973. These legislations empower the State to not arbitrarily and indefinitely shut down networks.

Even so, the orders are to be reviewed by a committee set up under Temporary suspension of Telecom services (public emergency or public safety) Rules 2017 and Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009. The Anuradha Bhasin v. Union of India case held that the government cannot claim any privileges from publishing the orders and must apply the test for proportionality before issuing an order.

This study also analysed the impact of Internet shutdown to illustrate the gap in the execution of the law. The law and case laws have provided clear procedure to be followed which when implemented earnestly with a transparent review process would protect the fundamental right to access the Internet.

End-Notes:

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Berhan Taye, Targeted, Cut Off, And Left in The Dark: The #KeepItOn report on internet shutdowns in 2019 (2019).
Niall McCarthy, The Countries Shutting Down The Internet The Most, Statista (Jan. 22, 2020), https://www.statista.com/chart/15250/the-number-of-internet-shutdowns-by-country/.
Darrell M West, Internet shutdowns cost countries $2.4 billion last year, Center for Technology and Innovation at Brookings (Oct, 16, 2016), https://www.brookings.edu/wp-content/uploads/2016/10/intenet-shutdowns-v-3.pdf.
A/HRC/32/L.20 (June 27, 2016).
(1997) 6 SCC 241.
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WP(C) 1031/2019.
(2017) 10 SCC 1.
WP(C) 1031/2019, at 62-63.
Kenneth Roth, Shutting Down the Internet to Shut Up Critics, Human Right Watch, https://www.hrw.org/world-report/2020/country-chapters/global-5.
SFLC.IN, Living in Digital Darkness: A Handbook on Internet Shutdowns in India, at 16 (2018).
C/WPPIL/191/2015.
Berhan Taye, Access Now, The State of Internet Shutdowns Around the World: The 2018 #Keepiton Report, at 4-5 (2018).
TNN, How India Became The Global Leader In Internet Shutdowns, TOI (Jan. 8, 2020), https://timesofindia.indiatimes.com/india/how-india-became-the-global-leader-in-internet-shutdowns/articleshow/72886376.cms.
Berhan Taye, Targeted, Cut Off, And Left in The Dark: The #KeepItOn report on internet shutdowns in 2019 (2019).
TNN, How India Became The Global Leader In Internet Shutdowns, TOI (Jan. 8, 2020), https://timesofindia.indiatimes.com/india/how-india-became-the-global-leader-in-internet-shutdowns/articleshow/72886376.cms.
Rajat Kathuria, et al., ICRIER.ORG, The Anatomy of an INTERNET BLACKOUT: Measuring the Economic Impact of Internet Shutdowns in India, at 16 (2018).
Id.
Id
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Id.
Id.
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