Context:

Recently, the Supreme Court questioned the Union Territory of Jammu and Kashmir about the non-­publication of orders for the suspension of Internet services. 

Internet Shutdown in J&K

• The Government of the Union Territory of Jammu and Kashmir (J&K) has restricted access to mobile data in Kashmir  many times, but the suspension orders have not been uploaded on the government’s websites. 
• Similar restrictions have been ordered by the government of Haryana in five different districts following farmers’ protests. However, Haryana orders are on social media but have not been uploaded on government websites. 

What Is An Internet Shutdown?

• An internet shutdown may be defined as an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.

Legal Provisions of Internet Shutdown in India

• Section 144 of the Code of Criminal Procedure: It gives District Magistrates broad powers during dangerous situations. 
  • Section 69(A) of the IT (Amendment) Act, 2008 gives the government powers to block particular websites, not the Internet as a whole. 
• Indian Telegraph Act, 1885: It stipulates that only the Home Secretary of the Union or a state can pass an order, and that the order must include the reasons for the decision of suspension of internet services. 
  • In “unavoidable circumstances”, the order can be issued by an officer of the rank of Joint Secretary or above, authorized by the Centre or the state Home Secretary.
• Review Committee: The order should be forwarded to a review committee the day after it is issued, and must be reviewed by the committee within five days to assess its compliance with Section 5(2) of The Telegraph Act.
• Section 5(2) of the Indian Telegraph Act, 1885, read with Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017: The government has the power to block the transmission of messages during a public emergency or for public safety.
  • However, the order must be during a “public emergency” or in the “interest of public safety”. Also, the suspension must be “necessary” and “unavoidable”.

Concerns and Challenges of Non-Publication of Orders

• No Reach to Justice by Aggrieved Person: Those aggrieved with the restriction cannot approach a court of law to question an order’s legality in the absence of the order.

• Illegal Restrictions: The court may direct the Government to produce the order, but this will allow the Government to delay production of the order until after the restriction has subsided. This enables the Government to get away with illegal restrictions. 
• Undermines Public Confidence in the Government: The Internet is a necessity in this age and restrictions without publicly disclosed reasons create a trust deficit. 
• No Statutory Recognition: The Union Government has also not done enough to give statutory recognition to the directions in Anuradha Bhasin. 
  • In 2020, it amended the Telecom Suspension Rules, 2017 to limit Internet suspension orders to a maximum of 15 days. 
  • However, the amendment did not include an obligation to publish orders nor did it include the Supreme Court’s direction to undertake periodic review of these orders. 
• Lack of Awareness: If Supreme Court decisions are not statutorily recognised, the officials enforce the law incorrectly simply because of a lack of awareness as experienced with Section 66A of the Information Technology Act . 
  • Example: Meghalaya in reply to an RTI application stated that it was not even aware of the judgment in Anuradha Bhasin pronouncement.

Impacts of Internet Internet Shutdown and Restrictions

• Economic Loss: India’s Internet restrictions accounted for more than 70% of the total loss to the global economy in 2020 and India remains infamous as the Internet shutdown capital of the world.
• Violation of Fundamental Rights: Internet restrictions violate Fundamental Rights under Article 19(1)(a) and Article 19(1)(g).
  • It also violates Right to Information, a Fundamental Right under Article 19 by the Supreme Court in Raj Narain vs State of UP, 1975 case.
  • It also violates the Right to Internet, a Fundamental Right under Article 21 by the Kerala High Court in Faheema Shirin vs State of Kerala case.

• • It also violates the Right to Freedom of Press, a Fundamental Right declared by the Supreme Court in Indian Express vs Union of India (1986) and Bennett Coleman vs Union of India (1972) cases.
• Multiple Harms: The Internet is a source of information, entertainment, health care, education, livelihood and a platform for the members of Indian society to interact with each other and the world at large, however the harms- economic, psychological, social, and journalistic caused by such suspensions outweighs any speculative benefits.

Way Forward

• Restrictions Only in Emergency Conditions: Internet suspensions ought to be imposed in times of emergency and not to stifle the democratic exercise of the right to protest. 
  • The Supreme Court, in Anuradha Bhasin, permitted the Government to restrict Internet access only in limited circumstances such as public emergency or a threat to public safety.
• More Faithful Compliance with the Supreme Court Guidelines: It is required on the part of the executive government to get rid from the tag of “internet shutdown capital” of the world and fulfill Digital India’s potential. 

News Source: The Hindu

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