Over the past few years, Indian authorities have often come under the scanner for their consistent reliance on internet shutdowns to crack down on situations that threaten public order and national security. A report by Access Now said that out of the 155 virtual curfews imposed in 2020, 109 were in India. This, the document said, has resulted in millions being deprived of “reliable secure, open, and accessible” internet services. In fact, the sheer magnitude of internet shutdowns informed part of American research organisation Freedom House’s decision to demote India from the status of a “free” to “partly free” democracy in its annual report. However, Indian authorities continue to argue that the shutdowns were only imposed in critical situations that actively threaten the security situation in the affected region. Therefore, seeing as the authorities remain adamant about imposing internet shutdowns, India must revamp its legal framework on virtual curfews to establish a well-balanced system that recognises the interests of the government while also acknowledging the detrimental impact of the exercise of this exceptional power on citizens’ rights and freedoms.
Currently, the legal framework surrounding internet shutdowns is highly fragmented. The government has the power to direct agencies to block access to information on any computer resource under the Information Technology Act, 2000. This law is strengthened by the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, which restricts the use of the powers under the law. Furthermore, the ability to block communication channels over the internet also finds its origins in the archaic Indian Telegraph Act, 1885. In fact, the broad definition of “telegraph” in this pre-colonial law allowed the Indian authorities to introduce the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 under this law. This effectively empowers the Secretary of the Ministry of Home Affairs of the central and state governments to call for internet shutdowns in “inevitable” situations, the exact scope of which continues to be ambiguous. Nevertheless, internet shutdowns in India continue to be brought in under Section 144 of the Criminal Procedure Code, which allows the District Magistrates to “direct any person to abstain from a certain act” that threatens public order. This set of widely framed laws give broad powers to Indian authorities and allow them to pick and choose the most suitable law to restrict internet service. Therefore, a single law that nullifies these powers and establishes a legal framework that not only balances the various interests in question but also provides structural and procedural clarity on the exercise of the controls is the need of the hour.
To begin with, the current laws are entirely silent on the detrimental impact of internet shutdowns and merely recognise the need to exercise this power in situations of public emergencies. Any law that empowers authorities to impose virtual curfews must acknowledge its social impact. In fact, this was one of the core arguments of the petitioners in the landmark case of Anuradha Bhasin vs Union of India in January 2020, who challenged the preventive internet shutdowns imposed in Jammu and Kashmir in preparation for the abrogation of the special status granted to the state. They argued that the shutdowns impacted the right to health, education, and to conduct trade and commerce. While the court upheld the government’s decision to impose the shutdown, it nonetheless recognised that the internet has emerged as a crucial tool for society due to its ability to allow citizens to access and disseminate critical information.
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Moreover, internet shutdowns also impact the economic growth and activities in the affected region. A research study by the Indian Council of Research on International Economic Relations estimated that internet shutdowns imposed in the period between 2012 and 2017 resulted in a loss of nearly $678.4 million and impacted multiple sectors. For instance, several individuals employed in Jammu and Kashmir’s Information Technology sector were pushed to “internet migration”, wherein they were forced to shut down their businesses and move to other parts of the country. Similarly, the e-commerce industry in Jaipur also faced severe difficulties due to the government’s repeated imposition of such virtual curfews, which greatly impacted the supply and delivery of products.
However, despite these social and economic impacts, it is unlikely that Indian authorities will agree to implement a law that will outright ban the imposition of internet shutdowns, specifically in light of the previous instances where the use of virtual curfews is said to have successfully curbed threats to public emergencies. For example, following the conviction of spiritual leader Gurmeet Ram Rahim Singh in 2017, Punjab and Haryana were staring at the threat of riots by his followers. During this period, the population of the two states complained about disruptions in banking services, access to information, and critical communication channels for personal and business-related use. Nevertheless, the imposition of an internet shutdown in the region resulted in immediate restrictions on the propagation of false information that, if left unchecked, could have further inflamed already skyrocketing tensions. Hence, a while more robust law on internet shutdowns must protect citizens’ rights and freedoms, it must equally protect the ability of the state to counter threats to public order.
The current legal framework’s failure to acknowledge the social and economic impact of internet shutdowns has resulted in a concerning exercise of power that does not sufficiently take into account the threat level, resulting in arbitrary and excessive uses of power. Hence, any law on the issue must discern between varying threat levels and allow for variations in the severity of the ensuing shutdown. For example, a more flexible approach could include merely shutting down social media websites or restricting the speed of internet services, which would prevent the population from being sprung into a complete information void.
Moreover, the current legal framework also fails to ensure transparency in the government authorities’ decision. This was a concern raised by an Indian advocacy group SLFC.in, which complained about the lack of public access to internet shutdown orders, despite it being explicitly mandated by the 2017 rules. The failure to comply with these rules is primarily a result of the shutdowns being imposed under a wide range of laws, which has resulted in ambiguity about the procedural requirements that authorities need to follow while passing orders declaring internet shutdowns. Hence, a single law on internet shutdowns would not only address the issue of this information asymmetry but would also be able to provide a mechanism and a platform where information about these orders, their scope, and their exact duration can be easily accessed. In turn, this will allow research institutions and civil society groups to question and critically analyse the exercise of these powers, thereby increasing the accountability of the authorities imposing these restrictions.
It is essential to recognise the truth that internet shutdowns are here to stay in India. Expecting a complete about-turn from Indian authorities and urging them to accept a total ban on internet shutdowns is highly idealistic and impractical. Hence, advocacy groups need to call for a solution that is more acceptable to the policymaker but which also entails more significant restrictions on these powers and enhanced transparency. Failing to take a more balanced stand on the issue of internet shutdowns could result in the continued exploitative use of the powers, which will, in turn, continue to detrimentally impact the social and economic interests of the country and its citizens.