Posted on: June 12, 2020 Posted by: Radhamani Saxena Comments: 0

Author: Manisha Borampeta, 3rd year (6th semester) B.A LL. B student at Pendekanti Law College, Hyderabad

ABSTRACT

The present article discusses about Internet shutdowns and its permissibility in India. Internet has become a basic availability of every human being in the present generation and the same is being misused by the people by spreading the false news, fake messages and false images about events, instances happening in India, which is leading to the major disturbances and violence, which is further damaging the public order and public peace in India. The government has powers to issue an order to ban the internet to withhold the public order and public peace in India. The present article deals with, what is internet shutdown and previous internet shutdown instances that occurred in India. This paper also highlights the permissibility of internet ban through various laws that exist in India.

INTRODUCTION

The online medium has become an integral part of our lives and everyone is using the internet to sustain in the virtual medium. As a coin has two sides, even the internet can be used in positive and negative ways. Spreading fake messages, false information, false news regarding any issue or instance will amount to the disturbance of public order and may result in damaging the state’s security issues. Hence, the government has powers to shut down the internet temporarily under the specified statutes to prevent the danger of public emergency.

MEANING OF INTERNET SHUTDOWN

Internet shutdown is a restriction on the access to internet services or mobile internet access intentionally by the government to control the people’s action through online. Internet shutdowns can be placed in a particular place, a particular period of time or on a particular website. Internet shutdowns are also called as “kill virtual switches” or “virtual lock-outs”. There are certain categories of internet shutdowns such as (1) National Internet Shutdown (across a specified nation), (2) Sub National Internet Shutdown ( in a specified region), (3) National Mobile Internet Shutdown (blockage of internet access to mobile at national level), (4) National Website or Server Shutdown (blockage of internet access to specific website or server in a specified state or region)[1].

Technical definition: “An internet shutdown is 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[2].”

INSTANCES

Internet ban has become common in India for the past decade. According to the 2019 Internet Shutdown Report by the Access Now organization, India was recorded as the top country in the world with 121 internet shutdown instances among the 213 reported shutdowns across the world. Kashmir’s internet shutdown incident has become the world’s second largest internet shutdown event in 2019 by imposing 175 long days internet ban[3] when the Jammu & Kashmir pronged into of Laddakh and Jammu & Kashmir Union territories. 145 long days internet shutdown was imposed in Kargil district in Ladakh after the bifurcation of Jammu & Kashmir. 133 days long mobile internet suspension in Kashmir in 2016 during Burhan Wani agitations. Another major internet ban was observed in Darjeeling for 100 days due to separate Gorkhaland agitation. Major internet shutdowns have taken place during the Citizenship Amendment Act (CAA) protests in Assam, Tripura, Bihar, Karnataka. These shutdown orders issued by the government is in the nature of preventive measure to fight with fake news message, incitement of hatred feeling and inciting violence to further prevent the danger to ‘public safety’ and ‘public order’ from communal violence, military actions, elections, protests, religious agitations, political instabilities etc.,

WHY INTERNET BAN SHOULD MAKE PERMISSIBLE

The utmost responsibility of the state is to protect and safeguard the citizens of the country and also the government has the rightful desires and legitimate duties to protect the public peace, public order and state’s security. Internet shutdown orders have also become the duty of the government to prevent the danger or apprehension of danger to the public order or to the national security of the citizens and the curtailment of the citizens rights during such orders is absolutely valid orders. Internet ban should make permissible at times to avoid the harm to the public order and integrity of India. Also, the government has the discretional power to issue orders, if there are any issues related to the national security. Even the internet has become the weapon in the wrong hands which is leading to the security issues of the State. Supreme court in Ramlila Maidan Incident vs. Home Secretary Union Of India[4] the Internet is not only a common place to exercise one’s right to freedom of speech and expression under article 19(1)(a) of the Indian constitution but also plays a major role as an impetus to disseminate the unbridled rumours that leads to anticipated danger to public peace and tranquillity. Hence, an internet ban should be made permissible in the emergency situations in India.

PERMISSIBILITY IN INDIA

Shutdowns can be instituted in the conflict which are permissible under various laws in India which will be such as: (i) Section 144 of CrPC, (ii) Under The Temporary Suspension of Telecom Service Rules, 2017, (iii) Under the section 69A of Information Technology Act, 1885, and (iv) Contractual obligation.

Under section 144 of CrPC

The Internet can be banned under section 144 of the Code of Criminal Procedure (CrPC). This section can be invoked if there is any ‘Urgent cases of nuisance or apprehended danger[5]’ and enables the state to issue mandatory and prohibitory orders to maintain the public peace and order. The flow of information through internet by the means of social media allows the people to communicate and spread the false information, false news and false images which has become the major source to incite the violence. Disturbance of public peace, protests, riots, and affray leads to the degeneracy of public order.

Right to freedom of speech and expression enshrined under article 19(1) (a) of the Indian constitution and the restriction on the same must be in accordance with the article 19(2). Article 19(1) (a) can be restricted only if the danger meets the immediate threat as per the article 19(2). The government can issue an order under section 144 Cr.P.C to restrict citizens right to speech and expression under article 19(1)(a) in accordance with article 19(2) if there is any threat to the ‘public order’ or ‘security of the State’ because the utmost obligation of the state is to ensure the security and protect the lives of the citizens.

The supreme court in Shreya Singhal vs. Union of India[6] held that right to speech that may lead to ‘incitement’ can justifiably be curtailed under Article 19(2). Also, Supreme Court upheld section 144 Cr.P.C intra vires the Constitution and orders regarding the ‘Security of the state’ would have a valid effect.

Under Temporary Suspension of Telecom Service Rules, 2017

The internet shutdown is permissible under Temporary Suspension of Telecom Services Rules, 2017 (here in after called as Suspension Rules). The government can restrict the Telecom Services by passing the Suspension rules under section 7 of the Indian Telegraph Act, 1885. However, there is no definition provided for the term ‘Telecom Services’ either in Act or in Suspension rules. But a wide definition is provided for the term ‘telephonic Services’ under the Telecom Regulatory Authority of India Act, 1997 which includes internet services.

Section 7 of Indian Telegraph Act states as: “Power to make rules for the conduct of telegraphs”[7].

Government can pass order under rule 2(1) of the Suspension Rules which can deduce its power under section 7 of the Indian Telegraph Act.

Rule 2(1) states as: “Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent authority), and in unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorized by the Union Home Secretary or the State Home Secretary, as the case may be: Provided that the order for suspension of telecom services, issued by the officer authorized by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order: Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours[8]”.

Also, the order passed under rule 2(1) must satisfy the requirements made under rule 2(2)[9] of the suspension rules. The passed order should be in accordance with the section 5(2) of the Act. According to the section 5(2) of the Act, the government can issue the order for the suspension of Telecom Services only in the cases of ‘public emergency’ and ‘in the interest of public safety’.

Section 5(2) sates as: “Power for Government to take possession of licensed telegraphs and to order interception of messages;(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order[10]

In Hukam Chand Shyam Lal vs. Union of India[11] and in People’s Union for Civil Liberties (PUCL) vs. Union of India[12], supreme court allowed shutdown of the internet under section 5(2) of the Indian Telegraph Act, 1885.

Under section 69A of Information Technology Act, 1885

Internet shutdown is also permissible under section 69A of the Information technology Act, 2000 in emergency situations.

Section 69A states as: Power to issue directions for blocking for public access of any information through any computer resource. –

(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine[13].”

Section 69A of the Information Technology Act, 2000 (here in after called as IT Act) read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (here in after called as Blocking rules) allows restrictions on access to the internet by blocking the web pages and websites. Internet shutdown is permissible under section 69A of the IT Act in accordance with the rules laid down in blocking rules.

The words ‘information generated, transmitted, received, stored or hosted in any computer resource[14]’ under section 69A (1) of IT Act includes internet services. Orders can be issued by the government for the blockage of internet access only in the anticipated situations mentioned under section 69A (1) of IT Act i.e., in the interest of the sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence[15].

In Shreya Singhal vs. UOI[16], court upheld the constitutional validity of the section 69A of IT Act, 2000 and the rules made there under. In Guarav Sureshbhai Vyas vs. State of Gujarat[17], affirmed that the power to block online or internet services were given under 69A of the IT Act.

The power has given to the government under Rule 9(1) of the Blocking rules within the scope of section 69A of the IT Act to block the websites in an emergency “when no delay is acceptable”. If there is any situation that leads to an emergency where ‘no delay is acceptable’. Hence, the government has the power under Rule 9(1) within the scope of section 69A of the Information Technology Act to block the internet services.

Rule 9(1) of Blocking rules states as: “(1) Notwithstanding anything contained in rules 7 and 8 the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with a specified recommendation in writing to Secretary, Department of Information Technology”[18].

CONTRACTUAL OBLIGATION

The government can also allow to banning the internet through entering into a contract. Internet service providers or the mobile internet service providers (Telecommunication companies) can enter into a contract with the government (Department of Telecommunications). The security conditions mentioned in the contract entered by them, which impliedly gives power to the government to ban the internet services by issuing proper notifications and the providers must comply with the notification issued by the government. The reference can be taken from the License Agreement for Unified License[19] between Telecommunication company and the central government, under chapter VI of security conditions; clause 39.15 states that: “The Government through appropriate notification may debar usage of mobile terminals in certain areas in the country[20]. The LICENSEE shall deny Service in areas specified by designated authority immediately and in any case within six hours on request[21].

CONCLUSION

The Internet shutdown is permissible in India in emergency situations. In my opinion even though the internet is the basic availability of every human being, it can be banned if there is any danger for using the same. Even though the fundamental rights of citizens are violating, internet shutdown is permissible for a temporary period of time if there is any urgency in imposing the same. Indian laws are also allowing the internet ban as mentioned above.

REFERENCES

[1] https://www.indialegallive.com/top-news-of-the-day/news/internet-shutdown-validity-legal-procedure-orders-80614.

[2] https://www.accessnow.org/cms/assets/uploads/2020/02/KeepItOn-2019-report-1.pdf.

[3] https://globalvoices.org/2020/03/02/internet-shutdowns-in-2019-india-continued-to-top-list-of-worst-offenders/.

[4] (2012) 5 SCC 1 (India).

[5] Section 144 of CrPC.

[6] (2015) 5 SCC 1 (India).

[7] Section 7 of Indian Telegraph Act.

[8] Rule 2(1) of Temporary Suspension of Telecom Service Rules, 2017.

[9] Rule 2(2) of Suspension Rules, 2017- Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day.

[10] Section 5(2) of Indian Telegraph Act.

[11] (1976) 2 SCC 128 (India).

[12] (1997) 1 SCC 301 (India).

[13] Section 69A of Information Technology Act.

[14] Supra 14.

[15] Section 69(1) of Information Technology Act.

[16]2015 5 SCC 1 (India).

[17] w.p. (PIL) No. 191 of 2015.

[18] Rule 9(1) of Blocking rules.

[19] License Agreement for Unified License.

[20] License Agreement for Unified License, chapter VI of security conditions; clause 39.15.

[21] Unified License Agreement available at http://dot.gov.in/sites/default/files/Unified%20Licence_0.pdf.

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