This post is written as part of the "For Digital Dignity Project", ONLINERPOL,
carried out by a team of researchers based at the Department of Social and Cultural Anthropology, in cooperation with the Department of Communication and Media Research, LMU Munich, and a global network of collaborators.
- Siddharth Narrain*
The last few years have seen an exponential rise in the numbers of what are commonly called Internet shutdowns- instances where the Internet, usually mobile Internet services, has been blocked by a country in a specific geographical area. This phenomenon has been part of a larger move from governments globally cracking down on dissent and trying to restrict speech on the Internet. Statements condemning this, and asking governments to exercise restraint and protect freedom of speech online have been issued at various fora at the United Nations level.[1]
The Brookings Institute, a policy group that did a study on the impact of Internet shutdowns, estimated that Internet shutdowns in the period between July 2015 and June 2016 cost India 968 million dollars in terms of a reduction in economic activity.[2] The report notes a rising trend in government disruptions of the Internet since 2011, which coincides with the Arab Spring revolutions, which for many is the point at which this phenomenon became talked about globally.
In India, internet shutdowns have emerged in the wake of the rapid spread of mobile phone enabled Internet, the availability of cheap smartphones and the popularity of OTT (Over-the-Top) platforms such as WhatsApp that are end to end encrypted. The present number of Internet users, although highly differentiated by income and gender, is estimated to be at 450 million and expected to rise to 750 million in the next three years,[3] with falling data rates, reduced prices of smart phones, and changing patterns of information consumption.[4]
The impact of regular Internet shutdowns in the country can therefore be devastating, given that a large number of people depend on the medium for business, educational, and governance related transactions. The Software Freedom Law Centre (SFLC) estimates the number of shutdowns in India in 2017 to be 62, which is double the number they tracked the previous year.[5]
One of the most important reasons behind internet shutdowns was to stop the circulation of emotionally charged messages, images and audio clips that are meant to instigate religious and other communities against each other should, Internet shutdowns are rarely used on their own, or as purely preventive strategies, they are usually linked to violence, curfew and threats to violence in the physical world. For instance, prominent examples of this were seen during the Patidar reservation agitation in 2015 in Gujarat, the Jat agitation in Haryana in 2016, and widespread violence in Haryana after the conviction of Ram Rahim on charges of rape in 2017.
It is significant then, that one of the first instruments of the law, that police and state authorities invoked to enforce shutdowns is Section 144 of the Code of Criminal Procedure, 1973 (CrPC). This law that is usually invoked to prevent riots and enforce curfew, and maintain law and order in a communally charged atmosphere, where there could be a danger to the physical safety of a group of people based on their religious, caste, linguistic or ethnic identity. As per this section, the authority to impose a curfew lies with the District Magistrate, Subdivisional Magistrate or other Executive Magistrate given this power by the government.[6] This section can be invoked if the Magistrate concerned determines that it is likely to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.[7]
The use of section 144 CrPC to shut down the Internet has been held to be legal by the Gujarat High Court in 2015. In this case, (Gaurav Sureshbhai Vyas v. The State of Gujarat) the petitioner, a law student, had challenged the government shutting down the Internet in the western Indian state of Gujarat. The petitioner argued that the government should not have blocked the Internet as a whole for the state, and that the government should have instead invoked section 69A of the Information Technology (IT) Act (The Blocking Rules) that allowed for the government to block specific sites “in the interests of sovereignty and integrity of India, defense of India, security of the state, friendly relations with foreign states, public order, or to prevent the commission of an offence”.
The court in this case rejected both these arguments. The court held that the government had not completely blocked the Internet, as the public still had access to broadband services, and Wi-Fi. The court also said that while section 69A of the IT Act was meant to block certain websites, under section 144 CrPC, the government could issue directions to persons who are responsible for extending Internet access.[8] The court held that in case of a law and order situation, it is up to the competent authority, i.e. the government, to decide how best to bring the situation under control. The court held that if the government decided that issuing directions to mobile companies to block mobile broadband access is needed in such a situation, then the court would not interfere with this decision.[9]
In August 2017, the government introduced a specific amendment to the Indian Telegraph Act to regulate Internet shutdowns. Details of this amendment, as well as the terms of license of mobile companies, will be discussed in the next post.
*Siddharth Narrain is a Visiting Faculty at the School of Law, Governance and Citizenship, Ambedkar University, Delhi. He can be contacted at siddharth.narrain@gmail.com.
[1] See e.g. United Nations Human Rights Council Resolution on The Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/32/L.20, passed on 1 July 2016; and the United Nations Human Rights Council Resolution on The Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/20/L.13 passed on 29 June 2012
[2] https://www.brookings.edu/wp-content/uploads/2016/10/intenet-shutdowns-v-3.pdf, (6 March, 2018: 2:15 PM)
[3] Nakul Nayak, http://www.caravanmagazine.in/vantage/suspension-telecom-services-rules-legitimise-internet-shutdowns-facilitate-voice-call-bans, Caravan Magazine, (10 March, 2018: 3:15 PM)
[4] Shoaib Danital, “Falling Data Costs, Massive Mobile Usage make India a Fascinating Market for internet, says report”, https://scroll.in/article/839362/falling-data-costs-massive-mobile-usage-makes-india-a-fascinating-market-for-internet-says-report, (10 March, 2018: 4:30 PM)
[5] https://www.internetshutdowns.in/
[6] “Legality of Internet Shutdowns under section 144 CrPC”, Software Freedom Law Centre, 2 February 2016, https://www.sflc.in/legality-internet-shutdowns-under-section-144-crpc, (10 March, 2018: 5:45 PM)
[7] Section 144, Code of Criminal Procedure, 1973
[8] Paras 8 and 9, Gaurav Sureshbhai Vyas v. The State of Gujarat, Writ Petition (PIL) No. 191 of 2015
[9] Para 11 Ibid