An Internet shutdown means a blanket ban on all internet and mobile services, causing a standstill in many lives. The arbitrary and unreasonable internet ban not only violates Article 19(1) (a) Freedom of speech and expression, Article 19(1) (g) Freedom to practice any profession or to carry on any occupation, trade or business, but also Article 21 Right to life and liberty, by restricting individuals from carrying their trade and businesses and disrupting their only source of income.
Even though Article 19 stipulates that restrictions can be placed on the freedom of speech and expression, Internet shutdowns of such intensity do not justify the objectives of such restrictions. Freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the United Nations in 1966. It has 172 state parties, including India, with only 18 countries having taken no action on it. A 2016 resolution by the UNHRC clearly states that the same human rights that people have offline must be protected online.
While there is no proven benefit of closing down the internet, there are serious economic repercussions. Internet shutdowns make human rights, a hostage to the whims of the executive. The Government's stated reason that internet shutdown orders are given to stop the spreading of misinformation can be counterproductive - Shutting the internet results in an information blackout that can also create hysteria, panic, and result in even more discord. Internet shutdown cannot be a solution to a larger governance problem.
In the case of Romesh Thapar v. the State of Madras, the Court had observed that the freedom of speech and the press laid at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.
With hundreds of small entrepreneurs & businesses adapting to the online business model, disruption of Internet services for even 24 hours brings their businesses to a halt due to the breakdown of communication channels with their potential customers, payment gateway operators, delivery personnel, and other such intermediary parties involved. Also, a lot of artisans and their families get affected. Demonetization has reminded us of the State's power over essential facilities in the economy and society, while the push towards "universal payments" and cashless India demonstrates that the availability of the mobile Internet is now necessary for the flow of the economy's lifeblood. Further, neither banking transactions using credit and debit cards nor internet banking can be done, which leads to hardships to common citizens.
An Internet shutdown is more than just a disconnection from Whatsapp, Facebook, or Twitter, limiting access to knowledge and learning opportunities for students. People depend on the Internet to communicate with friends and family, share news and knowledge, and hold public institutions accountable. So, it is certainly morally questionable to strip people of a fundamental right by indiscriminately disabling communications. The internet shutdowns curb dissent and give the government excessive control over the dissemination of information and dominance over the narrative. Regular and indiscriminate shutdowns can have chilling effects on free speech in the long run.
In the recent case of Anuradha Bhasin v. Union Of India, the court held that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and 19(1)(g). The case concerned the Internet restrictions imposed in J&K on 4th August 2019 to protect public order. The court also held that "The restriction upon such fundamental rights should be in consonance with the mandate under Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality. "The bench then explained how the authorities could apply the doctrine of proportionality before passing any order intended to restrict individuals fundamental rights.” In the first stage, such a measure's possible goal must be determined, and it should be legitimate. Secondly, before settling on such a measure, the authorities must assess any alternative mechanism in furtherance of that goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such a measure, the bench held. It added, "Only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances." The bench was categorical that any such order should be supported by sufficient material and should be amenable to judicial review.
In the case of Shreya Singhal Vs. Union of India, the Supreme Court struck down Section 66-A of the Information Technology Act as putting an unreasonable restriction on the right to free speech. This was a landmark judgment and gave out a message that the right to free speech and expression cannot be taken away from the Indian citizen until necessary.
If the threat of the spread of rumors through the internet is also considered, the state may block certain websites using the powers under Section 69A of the Information Technology Act, 2000. There is no need to impose a blanket ban on the use of mobile internet.
Therefore, when this right is restricted, firstly, there has to be surety of a looming danger with a 'direct and proximate nexus' with the expression being curtailed. Secondly, this expression needs to qualify as 'incitement' and not mere advocacy of one's opinion, and thirdly, the measure imposed should be the last resort and unavoidable. It should neither be arbitrary nor subvert the rights protected by the Constitution.
Dr Ambedkar College, Nagpur