Sansad TV Discussion: "Internet: Regulating the Ban"

Table of Contents

Context

The Standing Committee on Communications and Information Technology (Chair: Dr Shashi Tharoor) submitted its report on ‘Suspension of Telecom Services/Internet and its Impact’, on December 1, 2021.

Background

India ranks first globally when it comes to shutting down the internet, earning the dubious distinction of being called the “internet shutdown capital” of the world.
There have been a total of 550 internet shutdowns in India so far since 2012, and over 50 per cent of these shutdowns were imposed since 2019.

Key Recommendations of the Panel

The committee noted that the frequent suspension of telecom services and the internet affected life and liberty of people, and that it caused a huge setback to the economy of the country.
The panel observed that the Internet today is an indispensable part of the everyday lives of citizens and therefore, the government should explore the possibility of banning particular internet services, such as messengers like WhatsApp and social media websites, instead of putting in place blanket internet bans.
It also recommended to the Union government to issue a uniform SOP on the modalities to be adopted by all states and union territories regarding the Internet shutdown.
The view of the Committee was that there is a need to maintain a delicate balance between the citizens’ right to access the internet to exercise their rights and the duty of the State to deal with Public Emergency and Public Safety.
Talking about the economic impact, the panel said India lost 2.8 billion US dollars in 2020 to internet shutdowns.
Telecom operators reportedly lose Rs 24.5 million per hour in every Circle Area where there is a shutdown, according to the Cellular Operators Association of India.

Existing Rules on Internet Banning

The Rules, issued under the Indian Telegraph Act, 1885, stipulate 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.
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, under which the government has the power to block the transmission of messages during a public emergency or for public safety.
In the case of the central government, the review committee comprises the Cabinet Secretary and the Secretaries of the Departments of Legal Affairs and Telecommunications.
In the case of states, the committee comprises the Chief Secretary, Secretary, Law or Legal Remembrancer In-Charge, Legal Affairs, and a Secretary to the state government (other than the Home Secretary).
In “unavoidable circumstances”, the order can be issued by an officer of the rank of Joint Secretary or above, authorised by the Centre or the state Home Secretary.

What laws governed this area before the 2017 Rules were notified?

Internet shutdowns were ordered under Section 144 of the Code of Criminal Procedure, which gives District Magistrates broad powers during dangerous situations. Even after 2017, many local shutdowns are issued under this law.
Section 69(A) of the IT (Amendment) Act, 2008 gives the government powers to block particular websites, not the Internet as a whole.
The Centre has never ordered a nationwide Internet shutdown. Still, India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019. The ongoing shutdown in Kashmir is the longest ever in any democratic country.

Supreme Court’s Observation

On January 10, 2020, the Supreme Court of India held that access to information via the Internet is a fundamental right under the Indian Constitution. This was in the case of Anuradha Bhasin vs Union of India, where the top court also ruled that any restriction on Internet access by the Government must be temporary, limited in scope, lawful, necessary and proportionate.
The Supreme Court, ruling on a petition against the suspension of communications in Jammu and Kashmir, had issued guidelines on internet shutdowns. These included directions that any indefinite suspension would be subject to regular judicial scrutiny, and that the government must provide detailed reasons for the suspension so that aggrieved persons may challenge them in court.
Following this, the 2017 rules were amended in November 2020 to mandate that any suspension order issued shall not be in operation for more than 15 days, and all such orders should be published to enable the affected persons to challenge them before a high court or other appropriate forum.

Impact of Internet shutdown on economy

When internet services are suspended, the ability of people to freely express themselves gets limited, journalists struggle to upload photos and videos, students are cut off from their classes, accessing health care services gets difficult and the economy ultimately suffers.
India leads the global tally in suspension of internet services over the past decade. In 2019 and 2020 alone, internet and allied services remained suspended in India for more than 13,000 hours, with as many as 164 instances of shutdowns being enforced.
Top 10 VPN, a leading Virtual Private Network review website, reported in 2020 that the internet was shut down in India for 8,927 hours, and it cost the country over US$ 2.8 billion (Rs. 20,973 crore). This means that the average cost of an Internet shutdown in India in 2020 was over Rs 2.34 crore per hour.
According to Cellular Operators Association of India (COAI), telecom operators lose Rs 24.5 million per hour in every Circle Area where there is a shutdown or throttling, the Parliamentary committee stated in its report.
Long-term internet shutdowns have even more far-reaching impacts like shutting down of businesses, loss of livelihood and children dropping out of schools.

Way Forward

Internet shutdown is definitely not a solution to most of the problems that the government intends to solve using internet shutdown.
Internet shutdowns have also been used as a tool of “administrative convenience” in the past, such as for curbing cheating in exams.
Shutdowns imposed to stop rumours or fake news often give rise to panic among people as this stops them from receiving information from legitimate sources as well.
There is no empirical evidence to claim that the internet shutdowns prevent public disorder.
In fact, research demonstrates that in times of public unrest, the internet enables individuals to seek help, verify news and maintain contact with family and friends — all of which contribute to the restoration of peace.

Conclusion

There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable.