The Republic of India today has been labelled as the Internet shutdown capital of the world, a label that all citizens of the Republic regret. The Internet in the present age has become an essential tool for the citizens, especially when it comes to the Right to Free Speech and Expression under Article 19(a) of the Indian Constitution and the Right to trade, profession and occupation under Article 19(g). Its uses and importance today, in both our personal lives and the economy is well known, and thus the question arises of what is the impact of an internet shutdown. Today the Internet is at a loggerhead with liberty and security, and the challenge before us is whether we want security or liberty- something which the citizens of the republic must reflect upon.
Liberty and Security
Liberty and Security have always been at loggerheads, and have always become a point of contention for both the State and the citizens. Liberty is the pillar on which the State stands, but then liberty exists without security. Liberty and security must always be like a stationary pendulum, for the pendulum of choice must never be in extreme to compromise the other side. Internet today is a reflection of liberty, especially in light of Article 19(a) and 19(g) and therefore depriving the citizens of Internet is a violation of liberty by the state, but with this said, it does not mean that security is inferior to liberty. The idea is not to suggest that its better to be free than to be sure, the idea is to ensure that the citizens of the Republic have all rights and liberty at a given point of time, while ensuring security for all at the same of point.
Internet shutdown and its contentions have been taken up by the highest court of the country, The Supreme Court of India in the Anuradha Bhasin Vs. Union of India and Ors. The court looked specifically on the matter of Liberty Vs. Security. Liberty can be curtailed by the State but that curtailment must always be tested for its reasonableness and proportionality, least be stated that it must be under the law of the land.
Internet Shutdown and Citizens
There have been a total of 552 cases of Internet shutdown in India, from 2012 till the end of 2021 with the longest shutdown being coincidentally of the same number 552 days in the Union Territory of Jammu & Kashmir. This being a preventive shutdown, the beginning saw restrictions on landline and mobile services as well. Preventive shutdowns, which are imposed in anticipation of an event, have been increasing exponentially in the country since 2016. In the year 2021 there were just 3 cases of reactive shutdown, which are imposed to curtail an existing law and order situation but 42 cases of preventive shutdowns.
Source: Software Freedom Law Centre
Section 5 of The Indian Telegraph Act 1885 gives power to the executive to curb the internet on the grounds of public emergency or to safeguard public security. The executive has however imposed a shutdown both preventive and reactive for reasons other than this, taking shelter under the same section of the act. In the year 2020, 69 per cent of the Internet curbs were due to political instability while 4 per cent due to communal violence and 7 per cent due to protest. The Internet has been curbed citing elections, religious holidays and exams among others. Internet Shutdown due to examination is fairly common scenario in Rajasthan, with sometimes it being the patwari recruitment examination or the more common Rajasthan Eligibility Examination for Teacher (REET). Internet has been curbed even for the Rajasthan Administrative Services (RAS) Examination; the rationale behind these shutdowns is to conduct public examination in a fair manner without any instance of unfair means and practices.
The procedures to be followed as in case of Internet Shutdown are clearly stated under the Temporary suspension of Telecom Services (Public Emergency or Public Safety rule) Rules 2017 notified under Section 7 of The Telegraph Act 1885. The rules are clear that any officer but the Home Secretary in case of Government of India must not suspend the telecom services or the Secretary level officer in the respective State Government’s Home Department. It is only in unavoidable circumstances that an officer not below the rank of a joint secretary issues such an order, and even in such a situation it must be duly authorised by the Union Home Secretary /Respective State Home Secretary. In case of Rajasthan, however we see order related to Internet shutdown being brought in by divisional commissioner and not the Home Secretary (Rajasthan). From 23 to 24 October 2021, when exam related Internet shutdown was last imposed in Rajasthan (it was imposed in three districts, Jaipur, Dausa and Bikaner) the government was expecting around 15 lakhs candidate. For the candidates appearing, liberty had to be restricted for security, but then for the remaining millions of citizens who had nothing to do with the examination, most might not be aware about the examination and why their liberty was curtailed. If the argument, which the government has, is Public Interest, then by the same rationale the Internet in the entire country must be shut down when the Union Public Service Commission conducts its examination.
Test of Proportionality
The idea is not to point fingers at the institutions but only to ask questions as duty bound citizens of the Republic that to what extent can Public Interest be used, to sometimes curtail liberty over security. Maybe what the citizens want is a Test of Proportionality to ensure a rational between the objective and the measures adopted to achieve it. For the pendulum of choice to not go in extreme between Liberty and Security, it is imperative that interventions must be proportionate to the need for such interventions and not only by sanctioned law but also carried out in accordance with law. It is essential to understand that the measures adopted to achieve the objective must not infringe to an extent than necessary for the fulfilment of the aim. The citizen’s reply to Internet shutdown and the debate over liberty and security is that whenever their rights are infringed and thus liberty compromised, it must be based on an existence of a rational and legal connection between what has to be achieved and how it has to be achieved.
- The Indian Telegraph Act ,1885
- Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules. 2017
- Anuradha Bhasin Vs. Union of India [Writ Petition (Civil) No. 1031 of 2019
- Anjum, Tabeenah. Outlook. October 23 2021 “Rajasthan shuts internet as 15 lakh candidates appear for patwari recruitment exam”. (https://www.outlookindia.com/website/story/india-news-rajasthan-shuts-internet-as-15-lakh-candidates-appear-for-patwari-recruitment-exam/398512)
- Duggal, Hanna. Aljazeera. March 3, 2021 “Mapping internet shutdown around the world” (https://www.aljazeera.com/news/2021/3/3/mapping-internet-shutdowns-around-the-world)
- Software Freedom Law Centre
- Venkataramakrishnan, Rohan. Scroll. July 16, 2018 “The Daily fix: internet shutdown to stop cheating is like cutting off water to prevent stealing” (https://scroll.in/article/886678/the-daily-fix-internet-shutdown-to-stop-cheating-is-like-cutting-off-water-to-prevent-stealing)
- Mehrotra, Karishma. The Indian Express. January 17, 2020 “Suspension of the internet: What the rules say, what the SC Underlined” (https://indianexpress.com/article/explained/suspension-of-the-internet-what-the-rules-say-what-the-sc-underlined-6220361/)
The views expressed in this article are the author's own.