LegumVox

LEGALITY OF INTERNET SHUTDOWN AND ITS IMPACTS

Introduction
With the increase in our dependence on the internet in day to day activities, its significance in the digital era is nothing less than a necessity. The Internet has become an indispensable way of communicating our opinions and expressions. Indeed, there are other mediums of communication. However, the reach and accessibility of internet connectivity is irreplaceable.  
Despite the well-known consequences of the internet shutdown on the country’s economy and social lives of people, the governments in various Indian states have imposed this tactic with increasing frequency. Such abuse of power is exercised under Section 144 [1] of the Code of Criminal Procedure, which empowers the state government to shut down the internet to maintain public peace and tranquillity. Access Now, an organization to track internet shutdowns reported that India ranks at the top among countries with the most Internet shutdowns accounting for 134 of the 196 shutdowns in 2018 around the world and Freedom Law Centre, a Delhi based software reports 91 shutdowns in 2019. [2]
A Tussle between fundamental rights and Section 144
Nowadays, many fundamental rights guaranteed by the Indian Constitution are largely exercised through the internet. There should be an equilibrium between the fundamental rights of individuals and the maintenance of law and order. More importance has to be given to public peace and tranquility but at the same time maintaining the right of individuals is one of the purposes of the state.  
The Right to express one’s opinion is guaranteed by the Constitution of India under Article 19(1)(a) and can be restricted under Article 19(2) only if there is a threat or apprehension of danger. This danger should not be remote, conjectural or far-fetched, but have a proximate and direct nexus with the expression sought to be restricted. [3] Along with the test of direct and proximate nexus, the State Government must ensure that the measures imposed for restricting free speech are least invasive. [4]
The wide powers are given to executive magistrate under Section 144 of CrPC call for cautions while the exercise of power. It is the responsibility of authorities to take reasonable steps due to its wide consequences on fundamental rights enshrined by the Indian Constitution.  These fundamental rights cannot be curbed unreasonably and for a disproportional period. The three-part test of legality, legitimacy, and proportionality needs to be fulfilled. [5] The threat to public tranquility and peace under urgent cases demands the attention of this provision and only then such provision can be invoked.6
Internet shutdown fails to pass the test of proportionality. This is because the government ceases to indiscriminate in both (i) whom they target and (ii) how they sought to do so. Internet shutdown within a prescribed area doesn’t make a distinction between potential disturbers of law and entirely innocent individuals. In the same way, a complete ban on the internet is unreasonable. There are other legal and bona fide uses of the internet for accessing essential services. Proportionality means that the purpose sought to be achieved is achieved and equilibrium is reached. It should be the “least injurious means” or “minimal impairment” to safeguard the fundamental rights of the citizens. [7] Thus, the restriction under Article 19(2) is arbitrary as it fails to pass the test of proportionality and such a blanket prohibition can’t be imposed. 
Also, the use of a provision in arbitrary fashion hampers the Right to trade and occupation. In this modern era, everything is connected to the internet, from booking cabs to avail of hospital services. From buying groceries to imparting education through online classes, the internet acts as a necessity. Moving forward, I would like to bring your attention to the Kashmir Internet Shutdown case, which was an attempt to challenge the Internet shutdown.
A Critical Analysis of Kashmir Internet Shutdown in 2019
The government shut down Internet services in Kashmir on 5 August 2019 with the abrogation of Article 370 of Indian Constitution and revocation of its statehood leading to the bifurcation of state into two union territories. [8] Simultaneously, the government cut down all mobile and landlines connections and detained people and political leaders. The shutdown was the longest that has ever imposed in the democratic state with 134 days with no longer records other than authoritarian countries like China. [9] The shutdown was revoked after mounting pressure on the government challenging its constitutionality and abysmal condition of people living in the volatile region. 
On 10th January 2020, the Supreme Court reviewed the suspension of internet services and stated that shut down in this manner is “impermissible”. The Supreme Court further held that “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 Article 19(1)(g) and restrictions should be in consonance with Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality”. [10] Aftermath, the government restored second-generation internet connectivity in the area. 
The government justified the shutdown stating that violent processes would have been erupted in the state because of the revocation of Article 370 of the Indian Constitution. This will damage the maintenance of law and order. But the issue here is that other mediums such as newspapers, Bluetooth, etc. can also be used to propagate news and opinion which may have the potential to disturb public peace. However, I am not defending such fake news, but the authorities should have to realize that there are other aspects apart from using the internet for social media and its consequences on fundamental rights. The word of mouth has been sufficient in spreading misinformation in a small valley which serves as a target against government justification for oppressing the opinions of people. The solution for this problem lies in the proper implementation of Section 69(A) [11] of the Information Technology Act having a restricted ban on the internet rather than shutting down the whole internet. Section 69(A) can be used to block those specific websites and connections which are potential disturbers of the public peace as it was done during anti-northeast disturbances in Bangalore in 2012 and the communal clashes in Muzaffarnagar in 2013. [12]
Impact of the Shutdown 
While there are no established benefits of the internet shutdowns on the security and stability of an area where it has been imposed, shutdowns have an extremely negative impact on the economic well-being and development of an area due to the increasing dependence of local, national and international businesses on the internet connectivity. [13] The Cellular Operators Association of India estimated the loss of Rs 24.5 million per hour and Top10VPN, a UK based internet research firm estimated that internet shutdown caused a loss of over $1.3 billion in 2019. [14] The e-commerce businesses, web-based apps, cab companies, hotels, and travel agencies were the most affected section of society. Thereby, hampering their fundamental right to carry on trade or profession and earn their livelihood. Due to a lack of work because of internet shutdown, youths are becoming triggered to join protests against government authorities and turned violent in search of a better life. [15]
The impact must not be analyzed from an economic perspective but also from the conditions of desperate people in light of angst and trauma. Many NGOs working through the internet for the welfare of people are also affected as they can’t carry forward their work effectively. For instance, Kashmir Women’s Collective, an NGO working for victims of sexual and physical abuse, mainly operated through Facebook to provide legal and other forms of help were closed. [16] This leads to the distressing condition of women facing domestic violence without any proper bits of help. 
The ramifications of Internet shutdown should also be analyzed from the media and press perspective. Due to the shutdown, the power of media houses has been seized as they have no authority to publish information. Even the environment of fear and anxiety exits among the operating journalists restricting them to publish free thoughts and opinions due to governmental pressure.17 The impact of the internet shutdown is incredibly wide-ranging from economic, political, and social activities. At the same time, government justification for the blanket ban is not appropriate as per large sections of society which fuels angst and distress and deteriorates the political atmosphere of the area and subcontinent. 
Conclusion
The internet shutdown has colossal consequences on the civil and legal rights of individuals. As stated by the apex Court of India Section 144 and restriction on free speech used to be imposed only when there is no alternative available. The effectiveness of the internet shutdowns has not been palpable and proven by the government; its adverse impacts have been adequately evident and have distasteful impacts on the economic and political situation of the country. The ramifications have been largely pessimistic which demands attention from the government authorities to reconsider the policy to internet suspension. The government should look forward to the least invasive measures and train its police with technical skills to investigate cybercrimes to catch the perpetrators rather than imposing sweep bans.  
References
[1] The Code of Criminal Procedure 1973 §144.
[2] Utkarsh Narain, ‘Are Internet shutdowns healthy for India?’ The Hindu, Available here
[3] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
[4] Re-Ramlila Maidan Incident Dt. v. Home Secretary, (2012) 5 SCC 1.
[5] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[6] Gulam Abbas v. State of U.P., AIR 1981 SC 2198.
[7] Chairman, All India Railway Rec. Board v. K. Shyam Kumar and Ors., (2010) 6 SCC 614.
[8] Joanna Slater & Shams Irfan, Internet service limps back to Kashmir after a nearly six-month blackout, The Washington Post (Jan. 27, 2020, 06:01 PM), Available here
[9] Id.
[10] Prathma Sharma, SC draws the red line on internet shutdowns, Livemint, Available here
[11] The Information Technology Act 2000 § 69, cl. A.
[12] Siddharth Narrain, Dangerous Speech in Real Time: Social Media, Policing, and Communal Violence, Epw Engage, Available here
[13] Forum Gandhi, The Trauma of Internet Shutdown, The Business Line, Available here
[14] Id.
[15] Asmita Bakshi, India is the internet shutdown capital of the world, Livemint, Available here
[16] Id.
[17] Id.

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