Internet shutdowns have become a disturbingly commonplace occurrence. Last week, mobile internet was banned in Rohtak amid the violence of the Jat quota stir. In last year’s India report for the Freedom on the Net study, we triumphantly closed the study noting there were almost no internet shutdowns in India. Since then, things have escalated. Internet services were suspended six times in Gujarat in August-October 2015, when there was also one shutdown in Rajasthan and one in Manipur. Suspension of services in Kashmir takes place with regularity and impunity, and is barely noticed. Given that suspension of internet services is quickly moving towards becoming commonplace, someone finally took the issue to the SC for some reining in of government powers.
The remedy sought by lawyer Apar Gupta on behalf of law student Gaurav Vyas was simple. The government currently uses different laws to suspend access to communication. The petition before the SC asked that the government be compelled to confine itself to a single mechanism, outlined in the Indian Telegraph Act and the Information Technology Act (IT Act), for suspension of communication. The idea was that since sector- and subject-specific mechanisms exist within these legislation, the government should be encouraged to use these instead of resorting to wide and general legal mechanisms that may not be designed or equipped to deal with suspension of communication. It was also argued that the government should develop guidelines for when and how internet services may be suspended.
The legal mechanism usually used to shut down internet services is the procedure contained in Section 144 of the Criminal Procedure Code (CrPC), which requires a written order from a magistrate. This broadly-worded section permits the government to issue an order 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”. It’s a pre-Independence legal provision of some notoriety. It has been deployed more than once to prevent protests by citizens, notably even during the protests that followed the rape and death of Jyoti Singh in Delhi. Section 144 has survived constitutional challenges and been held consistent with the right to freedom of expression as contained in Article 19(1)(a) of the Constitution.
The constitutional challenge to Section 144 took place well before the internet, and couldn’t have anticipated the effect this power would have on communication in digital society. The new trend of leveraging this power to prevent online communication is disturbing. The effect of a Section 144 order is enormous if it shuts down communication across the state — it’s not clear how a magistrate will assess whether a state-wide shutdown is warranted, or how much damage such a shut-down might do. As the Digital India programme is rolled out, our reliance on internet-based communication for essential services will increase, making it even more problematic every time a state decides to suspend mobile internet services.
The SC is yet to give the matter substantive consideration, since it refused to admit the petition. However, the Gujarat High Court ruled on a closely related argument last year, when Vyas asked that any suspension of internet must take place through the IT Act, and not using Section 144. Here, the high court failed to see the need for safeguards limiting the exercise of this power. This ambiguity surrounding how Section 144 may be used for internet shutdowns led to the petitioners asking the SC for guidelines that might indicate the threshold and limits of such power. The argument before the SC seems to have added to the arguments before the high court — it also included Section 5(2) of the Telegraph Act, in addition to Section 69A of the IT Act as avenues the government might use for internet suspension. Section 5(2) gives the government power to order suspension or interception of messages transmitted from telegraph.
It simplifies matters too much to cast the situation as a binary conflict between individual rights and law and order concerns. Uninhibited state power to suspend internet services threatens not just individual rights but democracy itself. It’s characteristic of states like Sudan, Kazakhstan and China. Rules detailing and limiting when internet services may be suspended would balance both concerns and provide courts with a clear benchmark to assess the proportionality of government action.