Imagine this situation. A region of the country is deeply annoyed with the actions of the government. There are plans for widespread and aggressive protests. The government fears that the protests might turn violent. It decides to cut-off the water supply to the entire region for an indefinite period of time, reasoning that people will be too busy looking for water to protest, and too exhausted by the time they have found it. In this way, law and order has been preserved.
Our intuitions rebel against this kind of reasoning. We think — rightly — that access to water is a basic, non-negotiable right, a part of the right to life, and that it cannot simply be left at the mercy of the government. If the government wishes to keep law and order, then it must find other, less drastic ways of doing so, such as increasing security, perhaps a curfew, or even winning the trust of the people and addressing their grievances.
Cutting off e-access
In the 21st century, the Internet has assumed an increasingly important place in our lives. From banking to political speech, and from complex medical procedures to the purchase of basic necessities, important aspects of our economic, social, and cultural life now depend upon the Internet. Many of the fundamental rights guaranteed by our Constitution — the freedom of speech and expression, the freedom of association, the freedom of trade — are exercised in significant part on the Internet. But the growing importance of the Internet in personal life, as well as its growing use to challenge governmental authority, has led to a backlash, where governments attempt to reorient the relationship between the individual and the state in their favour by controlling the Internet. In India, one ubiquitous form of such control is the “Internet shutdown”. Just like the government may cut-off water supply to prevent protests, the government may — and actually does — cut-off Internet access for purposes as comically diverse as preventing violent protests (Kashmir) and cheating in exams (Gujarat).
In an article published in May 2016, Apar Gupta and Raman Chima pointed out that with 37 Internet shutdowns, triggered by 11 States over a two-year period, India had attained the dubious distinction of joining Iraq in “reporting the highest number of incidents involving government mandated shutdown of Internet access” — with serious consequences both for civil rights, and for business. In another article, published just two weeks ago, Nakul Nayak pointed to 55 Internet shutdowns in 2017 alone. The sheer ubiquity of Internet shutdowns makes it clear that it is being used as a routine card in the ever-expanding “law and order” toolkit of the state. To return to the analogy with which this essay began, think of a situation where the standard — and primary — response of the government to a potential law and order problem was to immediately cut-off water access for an entire area, indiscriminately.
The legal angle
For a long time, the legal basis of Internet shutdowns was unclear. A few years ago, the High Court of Gujarat invoked Section 144 of the Code of Criminal Procedure (CrPC) to uphold an Internet shutdown. Section 144, which has its roots in the colonial-era British police-state, authorises prohibitory orders 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 tranquility, or a riot, of an affray.”
Section 144 is primarily used to secure an area from damage or harm in the case of a potential or actual law and order disturbance, and more notoriously, to ban protests or other forms of political action in places such as central Delhi.
A key flaw in the Gujarat High Court’s decision, however, was its failure to understand that the provisions of the CrPC cannot directly be transposed into the online world. In the way that it is commonly used in the physical world, Section 144, at its worst, only ends up placing certain specific areas beyond the bounds of large assemblies and associations, and always for a temporary period of time. An Internet shutdown, however, takes away an entire — and critical — platform of communication and work altogether.
In an attempt to adjudicate a fair constitutional balance between the fundamental rights of individuals on the one hand and the interests of the state in maintaining law and order on the other, the Supreme Court has often insisted that the state’s rights-infringing action must be “proportionate”: that is, there ought to be no greater invasion of the individual’s right than what is strictly necessary to achieve the state’s goal. Internet shutdowns, clearly, fail the test of proportionality. This is because they are indiscriminate, in both whom they target (that is, everyone within a defined area, whether potential disruptors of law and order, or the entirely innocent), and the manner in which they do so (cutting-off access to the entire Internet, which includes a vast majority of entirely bona fide and legal uses of the Internet).
More stringent rules
Perhaps realising that Section 144 of the CrPC was a poor peg on which to hang Internet shutdowns, in August 2017, the government notified certain “Suspension Rules”, taking the cover of yet another colonial law — the Telegraph Act of 1885. While these rules were meant to bring transparency and clarity to the procedure through which Internet services were suspended, they remain deeply problematic in themselves. As Nayak points out, there was no transparency or democratic debate when these rules were framed; their scope is frighteningly vast, and includes phone calls as well as Internet calls; and there is no provision that envisages a lifting of the shutdown after any specific time. But perhaps what is most important about these rules is the virtual non-existence of mechanisms of accountability. After designating certain officers who can authorise Internet shutdowns, the rules only require a “review committee”, whose scope is limited to decide whether the declaration was valid or not.
Even if we grant that in certain exceptional situations, such as a public emergency, the government may be justified in temporarily blocking access to certain parts of the Internet, this is a power that is liable to all kinds of misuse, and must be tempered with stringent safeguards. Just like the police must present an individual before a court within 24 hours if they want to keep her in custody, the government must, by law, subject Internet shutdowns to judicial scrutiny as soon as reasonably possible. And courts must take into account the exceptional character of Internet shutdowns and their impact on core civil liberties before validating them.
The notion that the government must have the ability to control the Internet in order to preserve law and order is an intuitively attractive one. However, like many other intuitively attractive ideas, the concentration of more power in the hands of the government will only further disempower the individual against the state, and achieve a temporary illusion of security at the cost of a permanent loss of freedom.
Gautam Bhatia is a Delhi-based lawyer .
