As the year draws to a close, Freedom House’s annual report on internet freedom points to a growing concern. At first glance, there is reason for cheer as India has maintained its score of 41 out of 100 (the score works on an inverted scale) and a rating of, “partly free”. However, this is deceptive, for the two reasons which are marked as positive trends for an open internet somewhat counterintuitively show continuing government efforts to undermine digital rights.
The first positive can be attributed to the comprehensive methodology of the report, which allocates a quarter of its points for improvement and deepening of access. The Union government, as well as the Telecom Regulatory Authority, are to be commended for bringing the internet to more Indians. India continues to add more internet subscribers, the speed of internet connectivity continues to rise, and the price per megabyte continues to fall. However, this virtuous cycle is wrenched by restrictions on content and violation of user rights. Though individual scores on both content restrictions and violation of user rights are maintained, the report indicates worrying trends.
While India has traditionally blocked individual websites, shutting down all internet traffic is a practice which has now gained official notoriety. An influential study by the Brookings Institute demonstrated India imposed at least 22 internet shutdowns last year — globally the highest. The Freedom House report notes the figure for the reporting year has reached at least 37 individual instances. Nebulous rules notified in September detail a bureaucratic process and formalise the legal sanction for issuing shutdown orders. Such restrictions on access correspond with continuing arrests for sharing content and messaging that criticises state policies or political satire. Such trends are gathered by press reports as government data on either shutdowns or arrests for online content remain unavailable. Repeated parliamentary questions on the number of internet shutdowns remain unanswered and the National Crime Records Bureau’s annual publication, Crime in India, that contains a separate chapter on “cyber crimes”, is of little help because it lacks details.
The second reason for buoyancy in the overall score was the Justice Puttaswamy judgment when the Supreme Court cleared the cloud over the fundamental right to privacy. The status of privacy as a fundamental right was brought into dispute by the government not only as a legal stratagem to advance the Aadhaar programme but as an argument for a more considerable exertion of state power. Given the primacy of digital services and data-driven state policies in our networked lives, an ambition for higher control without proper safeguards is a significant concern. At present, the fundamental right to privacy applies in litigation, but meaningful safeguards that are implemented pro-actively remain absent in India. The Puttaswamy judgement itself notes an affirmative state obligation to bring in a law to protect citizens against the harms of data collection, analysis and disclosure. Even though a government-appointed committee, under the widely respected jurist Justice B.N. Srikrishna, promises to bring in a data protection law to fill this vacuum, there exists a lack of civil society representation and transparency in the committee itself.
In several instances, continuing gains for free expression online are credited in the report to the Shreya Singhal judgement pronounced in 2015. By this decision, the SC struck down Section 66A and also made court and executive orders mandatory for removing online content. This makes one wonder whether the government is striking a discordant note with its executive actions and legislative policy to the increase in internet access and the SC protecting free expression and privacy online in critical cases.
The overall focus of the Freedom House report is the global rise of state-sponsored disinformation campaigns on social media. Despite investigative reports of political parties engaging in disinformation practices online, such instances are not meaningfully analysed in the India specific report. The Freedom House report cautions that a rating of “partly free” is not a passing grade for a democracy that values digital rights. Thankfully, next year we get another opportunity to do better.
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