December 20, 2019 1:07:56 pm
As protests took place across the country against the Citizenship (Amendment) Act 2019 on Thursday, including in the national capital Delhi, internet rights activists have decried the shutdown of telecommunications service and mobile data as excessive and termed it an ‘irrational move’, adding that these are no longer ‘limited to troubled’ parts of the country.
“This irreparably harms us economically, socially. Enforcing preventive policing in the anticipation of law and order in the absence of any evidence. It is a very irrational move all over the country. It is no longer limited to troubled hotspots,” Apar Gupta Executive Director at Internet Freedom Foundation to the Indian Express over the telephone.
“People earlier said it was only restricted to border regions. Now it has reached Delhi. This is what internet activists were saying for so long. It has become a normalised instrument of political and social control,” he pointed out. In India, ‘internet shutdowns’ or a blackout of all telecommunications networks, including voice, SMS and mobile data are not new.
Mishi Choudhary, a lawyer with the Software Free Law Centre (SFLC), who is based in New York said India has seen 94 internet shutdowns this year compared to 134 last year. While the number might be lower, qualitatively speaking things have been getting worse, in her view. SFLC has been tracking internet shutdowns in India since 2012.
“This has become the default tool of choice. First tool in the toolbox that the police picks up. Whenever there is a slightest hint of protest. Duty of police is to maintain law and order and not to bring an entire economy and as well as people’s lives to their knees,” she said in a telephone conversation.
This was the first time time that internet and all telecommunications services were suspended in the national capital. All voice communications, mobile internet and SMS were shut down for several hours in some parts in light of the protests. This was based on an order issued by the Deputy Commissioner of Police Special Cell to telecom providers such as Airtel, Vodafone-Idea, Jio and BSNL/MTNL.
In other cities such as Lucknow, Mangalore, internet services are suspended as well. Earlier, mobile internet services were also suspended in the North-East in Assam, and in parts of Uttar Pradesh such as Aligarh, Sambhal. But the longest internet shutdown continues in Kashmir at 135 days and counting.
No clear reason
“No specific legal reason has been cited for this (Delhi internet shutdown). Police cannot issue these directions because they are not the proper authorities to permit internet shutdown. In Delhi’s case since it is a union territory, it would have to be authorised by the Home Ministry itself,” explained Gupta.
He added the order needs to be in a specific form and disclose the actual threat to public order due to which telecommunication services are being shut down.
The rules for suspending telecommunication services, which would include voice, mobile internet, SMS, landline, fixed broadband, etc, are the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. These rules derive their powers from the Indian Telegraph Act of 1885, Section 5 (2), which talks about interception of messages in the “interests of the sovereignty and integrity of India.”
The 2017 rules however, clearly lay out a process and manner under which suspension of telecommunication services can be carried out and it cannot be simply be on the basis of a police order as observed in the case of Delhi.
But not all shutdowns in India are often under the 2017 rules, which come with clear safeguards and procedures. Section 144 of the Criminal Procedure Code (CRPC) is also often used to clamp down on telecommunication services and order internet shutdowns, according to Choudhary.
For example in Sambhal, Uttar Pradesh, the internet services were suspended by the DM under Section 144. In West Bengal on June 20, 2019, mobile internet, cable services, broadband were shut down by the District Magistrate (DM) in the North-24 Parganas district under Section 144 over communal tensions.
“What has happened is that despite these rules, these internet shutdowns are not being imposed under the central government’s law. State police, commissioner of police or magistrate issue orders under Section 144. That has been mostly used for internet shutdowns in India is what our analysis says,” Choudhary told us.
Impact of an internet shutdown
Internet rights activists say that internet shutdowns as a measure ends up restricting freedom of speech and are a disproportionate measure. It also comes with economic and social impacts.
“It is about the nature of the exercise of power itself. It is unconstitutional because it shuts down all kinds of speech; it could be people calling for calm, people coordinating for medical help. Even policing personnel who maybe trying to control the protestors by appealing to calm. So the internet shutdown is a complete blackout. Blackouts by themselves are usually disproportionate,” Gupta explained.
In Choudhary’s view this is a dangerous kill switch. “No access to the internet makes one question the claims of the government that they want to push this image of Digital India, where they want to push all services online. Internet shutdowns shutdown also tell us how with one kill switch the govt can bring us to our knees,” Choudhary said.
Legal challenges to internet shutdowns
It should be noted that an internet shutdown is different from blocking a website. The Information Technology (IT) Act’s Section 69 for instance deals specifically with blocking of websites and urls. An internet shutdown per se stops all telecommunication services and access to the internet.
Telecom Service Providers (TSPs) have to comply with these orders given this is a highly regulated sector in India. The licenses of the TSPs are such with the government that they have to usually comply with these orders.
But can internet shutdowns, especially those which do not follow the set rules and procedure be challenged? Gupta says they should be and it is never about the duration of the internet shut down.
“As per of the doctrine of proportionality, which prescribes that any restriction of fundamental rights be done in a very narrowly tailored manner. Internet shutdown prevents even legal forms of speech,” he explained.
But as Choudhary points out the courts have been reluctant to step in when these orders are challenged. In 2016, the top court had dismissed a Special Leave Petition (SLP) which challenged the use of Section 144 to shut down internet (Gaurav Sureshbhai Vyas v. State of Gujarat). At the time, the court had held that sometimes it is necessary for the state to suspend internet for “law and order.”
In her view, one should not look only at the Supreme Court to protect civil liberties. “Yes, a legal route is possible and we should pursue that. But citizens should be demanding for their civil liberties. Businesses will have to say that this is not in favour of ease of doing business. That this is not a country which is attractive for foreign investment. And this will have to stop,” she said.
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