by Siddharth Narrain.
The last few years have seen an exponential rise in the numbers of what are commonly called Internet shutdowns- instances where the Internet, usually mobile Internet services, has been blocked by a country in a specific geographical area. This phenomenon has been part of a larger move from governments globally cracking down on dissent and trying to restrict speech on the Internet. Statements condemning this, and asking governments to exercise restraint and protect freedom of speech online have been issued at various for at the United Nations level.[1]
The Brookings Institute, a policy group that did a study on the impact of Internet shutdowns, estimated that Internet shutdowns in the period between July 2015 and June 2016 cost the country 968 million dollars in terms of a reduction in economic activity.[2] The report notes a rising trend in government disruptions of the Internet since 2011, which coincides with the Arab Spring revolutions, which for many is point at which this phenomenon becomes talked about globally.
In India, internet shutdowns have emerged in the wake of the rapid spread of mobile phone enabled internet, the availability of cheap smartphones and the popularity of OTT platforms such as Whatsapp that are end to end encrypted. The number of Internet users, although highly differentiated by income and gender, is estimated to be at 450 million and expected to rise to 750 million.[3]
The impact of regular Internet shutdowns in the country can therefore be devastating, given that a large number of people depend on the medium for business, educational, and governance related transactions. The Software Freedom Law Centre (SFLC) estimates the number of shutdowns in India in 2017 to be 62, which is double the number they have tracked the previous year.[4]
One of the most important reasons behind internet shutdowns was to stop the circulation of emotionally charged messages, images and audio clips that are meant to instigate religious and other communities against each other should, Internet shutdowns are rarely used on their own, or as purely preventive strategies, they are usually linked to violence, curfew and threats to violence in the physical world.
It is significant then, that one of the first instruments of the law, that police and state authorities invoked to enforce shutdowns is section 144 of the Code of Criminal Procedure (CrPC), a law that is usually invoked to prevent riots and enforce curfew, and maintain law and order in a communally charged atmosphere, where there could be a danger to the physical safety of a group of people based on their religious, caste, linguistic or ethnic identity. As per this section, the authority to impose a curfew lies with the District Magistrate, subdivisional Magistrate or other executive magistrate given this power by the government.[5] The grounds on which this power can be invoked include a) sufficient ground b) requirement for immediate prevention c) speedy remedy to prevent a likely 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, or an affray. [6]
The use of section 144 CrPC to shut down the Internet has been held to be legal by the Gujarat High Court on 2015. In this case, (Gaurav Sureshbhai Vyas v. The State of Gujarat) the petitioner, a law student, had challenged the government shutting down the Internet in the western Indian state of Gujarat. The petitioner argued that the government should not have blocked the Internet as a whole for the state, and that the government should have instead invoked section 69A of the Information Technology (IT) Act (The Blocking Rules) that allowed for the government to block specific sites “in the interests of sovereignty and integrity if India, defense of India, security of the state, friendly relations with foreign states, public order, or to prevent the commission of an offence”.
The court in this case rejected both these arguments. The court held that the government had not completely blocked the Internet, as the public still had access to broadband services, and wi-fi. The court also said that while section 69A of the IT Act was meant to block certain websites, section 144 CrPC the government could issue directions to persons who are responsible for extending Internet access.[7] The court held that in case of a law and order situation, it is up to the competent authority, i.e. The government to decide how best to bring the situation under control, and if the government decides that issuing directions to mobile companies to block mobile broadband access is needed in such a situation, then the court should not interfere with this.[8]
In August 2017 that the government introduced a specific amendment to the Indian Telegraph Act to regulate Internet shutdowns. Details of this amendment, as well as the terms of license of mobile companies, will be discussed in the next post.
[This blog post is the first in a series of blog posts from the project “Law, religious violence and Internet and social media regulation in India” funded by ONLINERPOL.]
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[1] See e.g. United Nations Human Rights Council Resolution on The Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/32/L.20, passed on 1 July 2016; and the United Nations Human Rights Council Resolution on The Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/20/L.13 passed on 29 June 2012
[2] https://www.brookings.edu/wp-content/uploads/2016/10/intenet-shutdowns-v-3.pdf
[3]Nakul Nayak,
http://www.caravanmagazine.in/vantage/
suspension telecom-services-rules-legitimise-internet-shutdowns-facilitate-voice-call-bans, Caravan Magazine, 6 October2017
[4] https://www.internetshutdowns.in/
[5] “Legality of Internet Shutdowns under section 144 CrPC”, Software Freedom Law Centre2February2016 https://www.sflc.in/legality-internet-shutdowns-under-section-144-crpc, last accessed on 12 December 2017
[6] Ibid
[7] Paras 8 and 9, Gaurav Sureshbhai Vyas v. The State of Gujarat, Writ Petition (PIL) No. 191 of 2015
[8] Para 11 Ibid