Should internet shutdowns be used to maintain public order?

India has more internet shutdowns than any other country. Why do state and district administrations resort to internet shutdowns and why do they do so often?

Radhika Jhalani: Recorded number of shutdowns in India since 2012 internet shutdown tracker The number maintained by the Software Freedom Law Center is 738. There are many reasons why an internet shutdown is imposed. The official reason for about 40-50% of them is communal tension. Some of these are put up during protests, many during exams to prevent cheating, and many because of religious processions.

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Precautionary shutdown is applied before any event occurs. For example, Udaipur was shut down in fear of communal riots after a video of a tailor’s beheading (for supporting a BJP spokesperson who made controversial remarks on Prophet Muhammad) was circulated. A reactive shutdown is imposed after an incident has occurred and is generally the easiest way to control an escalating law and order situation.

Karnika Seth: There are about 84 shutdowns in India in 2022. While lots of shutdowns are necessary to prevent situations of sectarian tension, civil war, or riots and unrest, they need to be proportionate.

You said that the sanctions should be proportionate. The subtext is that there is some justification for trying to stop the rapid spread of misinformation or provocative material through shutdowns during difficult times. How can the interests of those who depend on the Internet be balanced with that of maintaining law and order?

Karnika Seth: Article 19 of the Constitution mentions freedom of expression and freedom to practice any profession. Article 21 protects the right to life and liberty, including the right to education and the right to exercise one’s freedom of access to the Internet. The Supreme Court has said in various judgments, which include Anuradha Bhasin And fahima shireen, that access to the Internet has to be protected. Shutdown should only be done in situations that require exceptional control and monitoring. The Court has said that the shutdown must be temporary, limited in scope, lawful and proportionate. Article 92 says that wherever necessary, reasonable restrictions should be imposed. The grounds include threat to the nation, national sovereignty, integrity and defence, or abetment or avoidance of the commission of a cognizable offence.

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Radhika Jhalani: Proportionality means you can’t shut down the internet to stop cheating in exams. You cannot solve social problems by plucking the lowest-lying fruit. I understand that freedom of speech and expression is not an absolute right, but there cannot be shutdown for trivial reasons. Rajasthan shut down the internet before the REET (Rajasthan Eligibility Test for Teachers) exam and West Bengal did the same before the Madhyamik exam.

Dr. Seth, you mentioned Anuradha Bhasin Decision. Can you give us a picture of judicially and legislatively imposed restrictions on when a shutdown can and cannot happen?

Karnika Seth: The Information Technology Act, 2000 says that blocking of a website is necessary if there is a threat to national sovereignty or integrity or defence. Accordingly, we have rules in place to set safeguards for website blocking. then there The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017,

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Shutdown should not be made a ground to prevent cheating in examinations. Proportionality has to be taken into account – whether shutdown is necessary or not. These are relevant questions for the courts to decide. The scales have to be balanced tactfully, as circumstances may vary. A general protocol or benchmark may not work for a particular situation. That is why the Home Secretary has the power to decide on the shutdown and the review takes place in a committee. and any challenge is decided by the appropriate court. There is a need for greater transparency and clarity on protocols and their interpretation, which can also come through case law clearly.

Ms. Jhalani, do you think the long shutdown in Jammu and Kashmir or the ongoing shutdown in Manipur is in line with these guidelines?

Radhika Jhalani: As a civil society organization, we oppose all kinds of shutdowns, whether it is a social media blockade or a complete blockade, because many of these decisions are not taken following due process. No one below the level of Joint Secretary can impose shutdown. But often, district magistrates enforce complete shutdowns. Internet shutdown is essentially a curtailment of a fundamental right. People cannot work, access telemedicine, study, or even eat, as many of our delivery services require internet and an OTP (one-time password) . When there is so much at stake, you have to be very careful when implementing an internet shutdown. Rule 5 of the Temporary Suspension Rules states that a review committee has to be constituted within five working days (of the issue of directions for suspension of services). Often, these applications are denied when you try to get an order to understand how the Review Committee is functioning and whether there are minutes of the meeting. This means that we do not know whether the review committee meeting took place or whether the closure is justified or not.

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According to Anuradha Bhasin Verdict, if you are cutting off someone’s internet, you must at least inform them. There is often no public information about shutdowns. After this decision, fortunately, shutdowns have started happening under suspension only rules as opposed to section 144, which is a good thing, but there are many guidelines which are not followed. For example, there is little or no publication of shutdown orders in the public domain. In Jammu and Kashmir, the government said in January 2020 that it would whitelist some websites and allow access to them via 2G. This was an impractical solution, as half the websites would not load on 2G. And if there are whitelisted websites, that’s a problem. A bank’s website can be whitelisted, but if you try to access your account information and it’s hosted on a different domain, you can’t.

The Manipur High Court constituted a committee to look into the possibility of blocking VPN servers so that internet access can be safely restored while the ban on social media websites is still in place. This is not a viable solution as VPNs provide access. Anyway, social media is also an important part of freedom of profession and freedom of speech and expression.

How can the shutdown affect people, especially when it is in force for a long time?

Karnika Seth: You have to protect the people. Such a drastic step (shutdown) should be taken only when it is really needed. On the other hand, I also understand that there are certain services for which we are heavily dependent on the internet. Many businesses and livelihoods today depend on the Internet. Therefore, such situations require some solution. For example, there may be some services that we would continue to have access to if possible. Some websites may be blocked rather than closed completely. And healthcare or education services may remain accessible. VPN can be blocked. People use VPN freely today and this is also an aspect of your right to privacy. But in some sectors, especially the government sector, there are guidelines where the use of VPNs is not allowed.

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Radhika Jhalani: The impact of the shutdown has been poorly studied. If we start reading about the effect of shutdown we will not implement it. Sometimes, people lose out on scholarships or even years of study because of the shutdown. We are a largely informal economy, so it is really hard to calculate the exact economic cost of the shutdown. But if we look at the impact, we will look for alternatives to the shutdown. Now is the time for us to do so.