ON FRIDAY, the Supreme Court declared that the fundamental right to freedom of speech and expression and the right to carry on trade or business using the Internet are constitutionally protected. This came in the backdrop of the five-month-long Internet shutdown in Kashmir. While India’s longest Internet suspension continues, the verdict has laid down a framework of how the Internet can be suspended, and what rights and legal recourses a citizen has when it is suspended.
What does the verdict say about Internet shutdowns?
Although the court stopped short of ruling that access to Internet is a fundamental right, it said that the Internet as a medium is used to exercise other fundamental rights. “Expression through the Internet has gained contemporary relevance and is one of the major means of information diffusion,” the court said. The observations made by the court essentially laid out guidelines that Internet shutdowns cannot be arbitrary and can be challenged in courts. However, for Kashmir, the court did not test the legality of the shutdown and has instead directed the government to review the orders. The court also said the orders suspending the Internet would have to necessarily state how the action was justified and proportionate to the imminent threat to law and order.
What procedure does the government follow to suspend Internet services?
The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.
SECTION 144: Before 2017, Internet suspension orders were issued under Section 144 of the CrPC. A law retained from the colonial era, it empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
The use of Section 144 to suspend mobile internet was challenged before the Gujarat High Court in 2015 but the court upheld the power of the magistrate to issue such orders.
SUSPENSION RULES: In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet. These Rules derive their powers from Section 5(2) of the Indian Telegraph Act, which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
But hasn’t Section 144 CrPC continued to be used to shut down the Internet?
Despite the 2017 rules, the government has often used the broad powers under Section 144. In the wake of the protests against the Citizenship Amendment Act, Internet services were suspended by the District Magistrate in Sambhal, UP, under Section 144. In West Bengal on June 20, 2019, mobile Internet, cable services and broadband were shut down by the District Magistrate in North 24-Parganas under Section 144 over communal tensions.
The government had argued that the “volatile history, overwhelming material available even in the public domain about external aggressions, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation” which mandated passing of orders under Section 144 to suspend the Internet in Kashmir.
SC order on Internet shutdown: Here’s why this goes beyond J&K, opens window for challenges, judicial reviews
In December last year, the Deputy Commissioner of Police, Special Cell, issued an order to the nodal officers of telecom operators including Airtel, Reliance Jio etc to interrupt services in specific areas.
So, what does the judgment say on the rules to be followed?
The court recognised that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
Quoting from the 2017 Rules, the verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs. The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours. Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day. Further, the confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.
What can an individual affected by an Internet shutdown do?
Although the Suspension Rules does not provide for publication or notification of the orders, the court said that an order, particularly one that affects lives, liberty and property of people, must be made available. When these orders are made available, an individual can challenge the orders in court on grounds of proportionality. “We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism,” the court said. While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts. The court also ruled that the government cannot refuse to publish such orders citing logistical inconvenience.
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