Making The Internet Disappear
G.S. Paper III: Awareness in the fields of IT
With 37 Internet shutdowns, triggered by 11 States over a two-year period, India had attained the dubious distinction of joining Iraq in reporting the highest number of incidents involving government mandated shutdown of Internet access.
The sheer ubiquity of Internet shutdowns makes it clear that it is being used as a routine card in the ever expanding “law and order” toolkit of the state.
The Centrality of Internet in the 21st century:
In the 21st century, the Internet has assumed an increasingly important place in our lives.
But the growing importance of the Internet in personal life, as well as its growing use to challenge governmental authority, has led to a backlash.
This has lead to the government attempting to reorient the relationship between the individual and the state in their favor by controlling the Internet.
Imagine this situation.
A region of the country is deeply annoyed with the actions of the government.
There are plans for widespread and aggressive protests.
The government fears that the protests might turn violent.
It decides to cut-off the water supply to the entire region for an indefinite period of time.
Since the inhabitants get preoccupied to store water, the protest can be controlled.
In this way, law and order has been preserved by the state.
When The Hypothesis comes true:
Just like the government may cut-off water supply to prevent protests, the government may— and actually does — cut-off Internet access.
If the government wishes to keep law and order, then it must find other, less drastic ways of doing so.
This should include measures such as increasing security, perhaps a curfew, or even winning the trust of the people and addressing their grievances.
Staring at a Habitual Response?
The sheer ubiquity of Internet shut downs makes it clear that it is being used as a routine card in the ever expanding “law and order” toolkit of the state.
From banking to political speech, and from complex medical procedures to the purchase of basic necessities, important aspects of our economic, social, and cultural life now depend upon the Internet.
The exercise of Fundamental Rights and the Internet:
Many of the fundamental rights guaranteed by our Constitution — the freedom of speech and expression, the freedom of association, the freedom of trade — are exercised in significant part on the Internet.
Think of a situation where the standard — and primary — response of the government to a potential law and order problem was to immediately cut-off the Internet access for an entire area, indiscriminately.
The Legal Angle:
The legal basis of Internet shutdowns was unclear for a longtime.
The Gujarat High Court’s Judgement:
A few years ago, the High Court of Gujarat invoked Section 144 of the Code of Criminal Procedure (CrPC) to uphold an Internet shutdown.
The Notorious Section 144:
Section 144, has its roots in the colonial-era British police- state.
Section 144, authorises prohibitory orders 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.
Section 144 is primarily used to secure an area from damage or harm in the case of a potential or actual law and order disturbance, and to ban protests or other forms of political action in places such as central Delhi.
Difference between the Real and the Virtual World:
A key flaw in the Gujarat High Court’s decision, however, was its failure to understand that the provisions of the CrPC cannot directly be transposed into the online world.
Section 144 only ends up placing certain specific areas beyond the bounds of large assemblies and associations, and always for a temporary period of time in the real world.
The unjust imposition of Section 144 on the Virtual World:
An Internet shutdown, based on Section 144 however, takes away an entire — and critical — platform of communication and work altogether.
Bringing About A Balance:
The Supreme Court always tries to bring about a fair constitutional balance between the fundamental rights of individuals on the one hand and the interests of the state in maintaining law and order.
The Test Of Proportionality:
The Supreme Court has often insisted that the state’s rights-infringing action must be “proportionate”.
By proportionate the Supreme Court meant that there ought to be no greater invasion of the individual’s right than what is strictly necessary to achieve the state’s goal.
Internet shutdowns, clearly, fail the test of proportionality.
The Indiscriminate Internet Shutdowns:
Because Internet Shutdowns are indiscriminate, in both whom they target that is, everyone within a defined area, whether potential disruptors of law and order, or the entirely innocent.
The manner in which the internet shutdowns cut-off access to the entire Internet, includes a vast majority of entirely bonafide and legal uses of the Internet.
The Notification of the Suspension Rules:
Realising that Section 144 of the CrPC was a poor peg on which to hang Internet shutdowns, in August 2017, the government notified certain “Suspension Rules”.
This it did by taking the cover of yet another colonial law — the Telegraph Act of 1885.
While these rules were meant to bring transparency and clarity to the procedure through which Internet services were suspended, they remain deeply problematic in themselves.
The Problems with the Suspension Rules:
There was no transparency or democratic debate when these rules were framed.
Their scope is frighteningly vast.
The rules includes phone calls as well as Internet calls.
There is no provision that envisages a lifting of the shutdown after any specific time.
No mechanism of Accountability:
But perhaps what is most important about these rules is the virtual non-existence of mechanisms of accountability.
The Suspension Rules designates officers who can authorise Internet shutdowns.
These rules only require a “review committee”, whose scope is limited to decide whether the declaration was valid or not.
When Exception becomes the Norm:
We may agree that in certain exceptional situations, such as a public emergency, the government may be justified in temporarily blocking access to certain parts of the Internet.
The Way Forward: Stringent Safeguards against misuse:
But this is a power that is liable to all kinds of misuse, and must be tempered with stringent safeguards.
The test of Judicial Scrutiny for Internet Shutdowns:
The police must present an individual before a court within 24 hours if they want to keep her in custody.
Likewise, the government must, by law, subject Internet shutdowns to judicial scrutiny as soon as reasonably possible.
The Exceptional Character of Internet Shutdowns:
And courts must take into account the exceptional character of Internet shutdowns and their impact on core civil liberties before validating them.
Concentration of Power:
The notion that the government must have the ability to control the Internet in order to preserve law and order is an intuitively attractive one.
The concentration of more power in the hands of the government will only further disempower the individual against the state.
Security not at the cost of Freedom:
This may help achieve a temporary illusion of security but it comes at the cost of a permanent loss of freedom.