• Kakoli Nath

INTERNET SHUT DOWN: IS IT A VIOLATION OF FUNDAMENTAL RIGHT? (WITH SPECIAL REFERENCE TO KASHMIR ISSUE

INTRODUCTION


Internet is so embedded in the lives of so many people, acting as the main way for information exchange, that to deny access to everyone in the world is on many levels is being termed as breach of human rights.  The Internet delivers a range of services, including inter-linked hypertext documents; the World Wide Web; electronic mail; telephony; and file sharing networks. Despite the billions of people accessing the Internet there remain pockets of the world that do not have access, including many people in the developing world; and there are several countries that attempt to restrict or control the content that users have access to such as in China and more recently in our own country.


Due to the lack of access and suppressive tactics by certain governments, the United Nations (U.N.) has declared that “online freedom” is a "human right," and one that must be protected.

The constitution of India has ensured the freedom of speech and expression under article 19 (1)(a) which is naturally linked with the information one has access to. In today’s world, the internet has become the most basic means to access information that empowers one with choice and freedom to express. It is in this regard that the internet shutdown is being seen as a violation of basic human entitlement.


RIGHTS EMPOWERING THE RESTRICTION ON INTERNET


· Section 69A of the Information Technology Act, 2000 mentions that Central Government or an officer authorized by it may, through a speaking order recorded in writing, block public access to information on a computer resource, by directing any agency of government or intermediary. Such public access is blocked when it is necessary ‘in the interest of 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 relating to above’.


The section also provides for establishing a procedure and safeguards subject to which such blocking of access is to be carried out. Pursuant to this, the Central Government notified ‘The Information Technology (Procedure And Safeguards for Blocking for Access of Information by Public) Rules, 2009’.


· The government in 2017 laid down, under section 7 of the Telegraph Act, an important rule to regulate the temporary suspension of telecom services due to public emergency or public safety, and called these rules the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which came into effect from 7 August 2017.


Rule 2(1) of the suspension rules categorically stated who could order the suspension of the telecoms services and what would happen in case of any emergent unavoidable circumstances. It provided that the direction to suspend telecoms services shall be issued by way of an order to be made: (1) in the case of a central government, by the secretary to the government of India in the Ministry of Home Affairs; or (2) in the case of a state government, by the secretary to the state government in charge of the home department.


Rule 2(2) provides that 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 at the latest by the next working day. A look at the composition of the review committee reflects the seriousness of such orders of suspension.


Rule 2(6) provides that the review committee shall meet within five working days of the issue of directions for suspension of services due to public emergency or public safety, and record its findings of whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the Telegraph Act. Section 5(2) of the act deals with the power of the government to take possession of licensed telegraphs and to order the interception of messages. The prerequisite for an order to be passed under section 5, and therefore the suspension rules, is the occurrence of a “public emergency”, or for it to be “in the interest of public safety”.


· Section 144 of the Code of Criminal Procedure (CrPC) is issued in urgent cases of security threat or riot and bars the assembly of five or more people in an area where it has been imposed. The notification is issued by the District Magistrate of the area. The section also empowers the authorities to block internet access.


RIGHTS WHICH CAN BE AFFECTED BY RESTRICTION ON INTERNET


· Article 19 of  Constitution of India

~ The Constitution of India provides the right of freedom, given in article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 (1) (a) guarantees the freedom of speech and expression, as one of its six freedoms.

Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:

I. security of the State,

II. friendly relations with foreign States,

III. public order,

IV. decency and morality,

V. defamation,

VI. incitement to an offence, and

VII. sovereignty and integrity of India.

~ Article 19 (1) (g) of Constitution of India provides Right to practice any profession or to carry on any occupation, trade or business to all citizens. Art.19 (6) enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens.

I. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

II. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

· Article 21 of  Constitution of India

“No person shall be deprived of life and personal liberty except according to procedure established by law”.

· Article 19 of The Universal Declaration of Human Rights

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

OPINION OF INTERNATIONAL BODIES ON INTERNET


· The recommendations of the United Nations 2003 World Summit on the Information Society reflect the need for internet as a medium for enforcement of the fundamental right of expression. The principles adopted at the summit emphasize on ‘Full inclusion’ that would extend beyond mere access rights and would include initiatives to build confidence and security in the use of the Internet. In practice, this could include Governments establishing ‘sustainable multi-purpose community public access points’ and providing affordable or free Internet access to their citizens.

· A poll of 27,973 adults in 26 countries, including 14,306 Internet users, conducted for the BBC World Service between 30 November 2009 and 7 February 2010 found that almost four in five Internet users and non-users around the world felt that access to the Internet was a fundamental right.

· In May 2011, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted a report to the UN Human Rights Council "exploring key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds media". The report made 88 recommendations on the promotion and protection of the right to freedom of expression online, including several to secure access to the Internet for all.


FACTS RELATED TO SHUT DOWN OF INTERNET


Longest Shutdowns


· 213 Days, 4th August 2019 - 4th March 2020  Kashmir, Jammu and Kashmir


An internet shutdown was imposed on 4th August 2019, when Article 370 of the Constitution was abrogated by the Parliament of India. There was a Presidential order 272 dated 5th August 2019 which stated this. The State of Jammu and Kashmir was bifurcated into the Union Territories of Jammu & Kashmir and Ladakh. There was a preventive shutdown imposed in the state which is yet to be lifted entirely. The shutdown in Kargil was lifted on 27th December 2019 but continues in other parts of the state. The beginning of the communication blockade saw landlines as well as Mobile services restricted, the ban on landlines was lifted but suspension of mobile internet continues in the valley. On 25th January 2020, 2G services were restored in the valley for verified users.


Only whitelisted websites could be accessed and social media remains prohibited. The services were snapped again the same day on account of security concerns for Republic Day, 2G services for whitelisted websites were later restored on 26th January 2020 at 4PM. On 4th March 2020, a new order was passed by the administration of J&K, whitelist was removed but internet could only be accessed using 2G on verified SIM's.

· 133 Days, 8th July 2016 - 19th November 2016 ,Kashmir, Jammu and Kashmir


Longest Internet Shutdown was observed in Kashmir located in state of Jammu and Kashmir in 2016 due to the agitation caused by the killing of Burhan Wani on 8th July 2016. Mobile Internet Services were suspended for 133 days. While mobile Internet services on postpaid numbers was restored on November 19, 2016. Mobile Internet services for prepaid users were resumed in January 2017, this implies they faced almost a six month Internet shutdown

· 145 Days, 4th August 2019 - 27th December 2019,  Kargil


Kargil District of Laddakh faced a shutdown of 145 days which was imposed since 4th August, 2019 on the erstwhile State of Jammu and Kashmir. The shutdown was imposed alongside the suspension of all landline ,mobile and SMS communication as a preventive measure in the wake of the abrogation of article 370. It was lifted on 27th December 2019 in the district but it continues in other parts of the Erstwhile State.

· 100 Days, 18th June 2017 - 25th September 2017, Darjeeling, West Bengal


Third longest Internet services suspension was observed in Darjeeling. The order suspending the Internet services was promulgated on 18th June 2017 due to the ongoing agitation for a separate Gorkhaland. Two days later, on 20thJune, the order was extended to the broadband services as well, effectively shutting down the entire Internet, with several such extension orders Internet services were suspended in Darjeeling for 100 days.

TOTAL DAYS OF LOCKDOWN IN VARIOUS YEARS


7 in 2020, 106 in 2019, 134 in 2018, 79 in 2017, 31 in 2016, 14 in 2015, 6 in 2014, 5 in 2013, 3 in 2012  that makes  it total  385 days  of lockdown

TOTAL – 385 Days


COURT’S OBSERVATION


Faheema Shirin v. State of Kerala

Kerala High Court

Date of Judgement - 19th September, 2019


Facts:


The petitioner, Faheema Shirin, is a female student at Sree Narayaguru College (affiliate of the University of Calicut) who was residing at the Women’s Hostel run by the college. The hostel authorities implemented new regulations at the Hostel which restricted the use of mobile phones within the hostel from 10:00 pm to 6:00 am and then from 6pm to 10pm, while the use of laptop by undergraduates was prohibited.


Issue: Whether the restrictions imposed by the Hostel on the use of mobile phones infringed the fundamental rights of the petitioner, even if the restrictions was brought about at the request of the parents?


Decision: The court also stated as these students are adults they were capable of taking responsibility for their studies and said that the students should be allowed to use their mobile phones “to acquire knowledge from all available sources” in order to “achieve excellence and enhance [the] quality and standard of education.”


The Kerala High Court in a monumental decision has held ‘Right to Internet Access’ as a fundamental right. The Court declared that the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.

Anuradha Bhasin v Union of India

Supreme Court Case

Date of Judgment - 10 January, 2020


Facts


Jammu and Kashmir is an Indian territory bordering Pakistan that has been the subject of a decades-long dispute between the two countries. Under Article 370 of the Indian Constitution, the territory enjoyed special status, had its own Constitution and Indian citizens from other states were not allowed to purchase land or property there. On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019, which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made it fully subservient to all provisions of the Constitution of India.


In the days leading up to this Constitutional Order, the Indian government began imposing restrictions on online communication and freedom of movement. On August 2, the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and Amarnath Yatra pilgrims to leave the Jammu and Kashmir area in India. Subsequently, schools and offices were ordered to remain closed until further notice. On August 4, 2019, mobile phone networks, internet services, landline connectivity were all shutdown in the region. The District Magistrates imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.


The internet shutdown and movement restrictions (hereafter “restrictions”) limited the ability of journalists to travel and to publish and accordingly were challenged in court for their violations of Article 19 of India’s Constitution which guarantees the right to freedom of expression. 


Judgment contained these issues


· On article 19(1)(g) On article 19(1)(g) The court held that the law should absorb technological developments and accordingly mould rules to cater to the needs of society – not recognizing the role of technology within the sphere of law is only a disservice. It categorically held that expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. It also recognized the internet as a very important tool for trade and commerce, adding: “The freedom of trade and commerce through the medium of internet is also constitutionally protected under article 19(1)(g) [of the constitution], subject to the restrictions provided under article 19(6).”


· Article 19(1)(a) The apex court said that the expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.


While the court agreed that the internet could be used to propagate terrorism, it rejected the argument of the government that, since there is no technology to ban selective usage of the internet, internet services need to be curbed entirely. The court said if such a contention was accepted, then the government would have a free pass to issue a complete ban every time: “Such complete blocking/prohibition perpetually cannot be accepted by this court.”


· Under section 69A  of Information Technology Act The Supreme Court in the Anuradha Bhasin case, while making reference to section 69A, held that: “The aim of the section is not to restrict/block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the government to restrict the internet generally under this section.”


· The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 While the Supreme Court did not reverse the suspension orders of the government, it offered respite on some points. The court noticed the gap in the usage of the word “temporary” in the title of the suspension rules. The court held that despite the word “temporary”, there was no indication of the maximum duration for which a suspension order can be in operation. It held that in view of the rationale behind proportionality, an order suspending the telecoms services indefinitely is impermissible.


The court suggested some procedural safeguards until the above gap is corrected through appropriate legislation. It accordingly directed that the review committee constituted under rule 2(5) of the suspension rules must conduct a periodic review within seven working days of the previous review. It required the review committee to look into whether the restrictions were in compliance with the requirements of section 5(2) of the Telegraph Act, and whether they were still proportionate.


· Section 144 of the CrPC With regard to orders under section 144 of the CRPC, which relate to unlawful assembly and suspension of telecoms services, the court left the door open for them to be challenged in high courts by aggrieved persons. It directed central and state governments to publish all current and future orders for this purpose. The government’s counsel had cited difficulty in producing the suspension orders, and the court said this reason was not a valid one.


· The Supreme Court quoted the lines of British judge Lord Diplock: “You must not use a steam hammer to crack a nut, if a nutcracker will do.” Hence, the need for the government is to find a solution to deal with law and order situations and terrorism, rather than resort to frequently banning internet services for long periods of time.

-SUBMITTED BY-

Bhavna Khatwani

Hidayatullah National Law University Raipur

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