This Research Paper is written by Vanshika Gupta, a Third Year B.A LL.B (Hons.) Student at University of Petroleum and Energy Studies, Dehradun.
ABSTRACT
The Research Paper will talk about the legality of the internet shutdown and conditions when the internet shutdown can be imposed on the Government. It talks about that the freedom of speech and expression guaranteed under Article 19 of the Constitution of India is not absolute and also about the legitimate power of the Government under Article 19(2) of the Constitution of India and Section 144 of the Criminal Procedure Code, 1973 to restrict the freedom of speech and expression in case of national or State emergency to control the situation of unrest throughout the nation or in the particular part of the country, to maintain morality, decency, peace and law and order in the society. Also, it talks about the authority of the Government under the Telegraph Act, 1885 to refrain the public from the internet access, as it is a special law, thus prevailing overall general laws under the principle rule of generalibus specialia derogant. This article will also contain the view of the different courts over the validity of the internet shutdown.
For a few years, the internet has become an integral part of our lives. These days, surviving without the internet is like surviving without air for most of us. From the youngest member in the family to the eldest everyone is exposed to internet access. It has become a place where people can exercise freedom of speech and expressions guaranteed under fundamental rights. In today’s time most of our work is dependent on the internet access as it helps in a faster mode of communication and also helps in providing better quality work, be it schools or big organizations. considering the recent situation, of the ongoing pandemic in which everyone is dependent on the internet connectivity for communication and for carrying out their work, be it a primary school child or a big business tycoon. Where internet connectivity has turned to be bliss on the community, some people misuse the internet to rage public unrest by sharing hatred messages to provoke people to rage war. In this case, the Government is left with no option other than imposing an internet shutdown in case of an emergency to maintain peace throughout the nation.
An Internet shutdown is a situation when the Government restricts the general public, refraining them from using the internet. This restriction can be imposed in the whole country or any part of the country for a certain period depending upon the cause of the restriction.
The center for internet and society ha classified internet shutdown in six categories:
- National internet shutdown: in this, the whole nation is refrained from using internet access.
- Sub-National internet shutdown: in this, the specific States of a region are refrained from using internet access.
- National mobile internet shutdown: in this, internet access is blocked over mobile phones throughout the nation.
- Sub-National mobile internet shutdown: in this, internet access is blocked over mobile phones in a specific State or region.
- National app/service shutdown: in this, access to a certain software application or mobile services, like messages are blocked throughout the nation.
- Sub-National app/service shutdown: in this, access to certain software applications or services, like messages are blocked in a specific State or region.
The power to shut down the internet is conferred under Section 144 of the Code of Criminal Procedure, 1973. In 2016 and 2017 the highest number of internet shutdowns took place.
Recently Jammu and Kashmir have observed the internet shutdown to prevent arising terrorism in the particular union territory.
The judgement, delivered by the supreme court with respect to the internet shutdown that took place in the region of Jammu and Kashmir, the court held that reasonable restriction on freedom of trade through the internet can be imposed in accordance with Article 19(2) and 19 (6) of the Indian Constitution. Also, the court held that Section 144 can be imposed on satisfying proportionality tests. It also laid down that situations like public emergency to be considered while imposing internet shutdown in the region.
Validity of the Internet Shutdown:
Despite Internet shutdown impacts various fundamental rights, the question arises whether it is constitutional and legal to refrain from the general public from the use of the internet? Under what authority does the Government have the power to impose the internet shutdown?
The Government’s actions to ban internet services can be justified by several provisions in the Indian Legal regime. The very basic and first condition is while a buyer buys the internet services, he agrees to certain conditions, one of which includes that the Government has the power to suspend the internet connectivity whenever required to maintain public peace by giving the users an appropriate notification.
Under Section 5(2) of the Telegraph act, 1885[1]
The Government of the State and the Center has the power under Article 19(2) to impose a reasonable restriction on transmission and interception of messages in the event of an emergency for maintaining peace throughout the nation.
Also, Section 144 of the Criminal Procedure Code, 1973 grants power to the Government of the center and the State to impose a ban on the use of the safety for public safety and for maintaining public law and order. In the case of Gaurav Sureshbhai Vyas v State of Gujarat [2], the petitioner challenged the internet ban in the State of Gujarat and asked the court to issue a writ to permanently restrict the State’s ability to block the internet. Internet access on the grounds that there was a violation of fundamental rights under Articles 14, 19, and 21of the Constitution of India [3]. It was held by the court that the State has the right to suspend the internet connectivity in a particular State to maintain public order and peace.
Section 144 of the Criminal Procedure Code, 1973 is the legal measure most frequently invoked by the Indian State to impose a total or partial ban on Internet services. Like the Indian Telegraph Act, 1885, Article 144 of the Criminal Procedure Code, 1973 is another colonial relic which, thanks to several amendments, has survived in the postcolonial Indian legal regime. Known for having been invoked to deploy curfews, this Section has had a long and diverse life in India. The Indian State has used its powers to place various types of orders. Its constitutionality has been challenged before the higher judiciary on several occasions, but the courts have consistently upheld it and have not developed any principles that could be used to guide its exercise. [4]
Under the Telegraph Act, 2017 the Government notified Temporary Suspension of Telecom Services Rules, which laid the procedure to restrict internet access in case of emergency. Prior to the promulgation of The Temporary Suspension of Telecom Services Rules were ordered under two legislations, i.e., Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885 (ITA)[5].
The new rules are listed in Section 7 of the Indian Telegraph Act, 1885, these rules give powers to the secretary in the Ministry of Home Affairs (Central Government) and the secretary to the State Government in charge of the Home Department (State Government) to impose internet shutdown orders, whereas, in Section 144 of the Criminal Procedure Code, 1973 district magistrate and sub-district magistrate had the powers to issue the shutdown orders. In cases of emergency, the order can be issued by an officer of the rank of joint secretary or above who has been duly authorized by the union home secretary of State home secretary, which has to be confirmed by the above two mentioned authorities within 24 hours.
According to rule 2 (1), the instructions of the competent authority must be given in accordance with the procedure detailed therein. The suspension rules are replaced in force, which means that suspension orders under any other law, including Section 144 of the Criminal Procedure Code, 1973, are illegal.
Relationship of Section 144 of Criminal Procedure Code & Article 19 of the Constitution of India
Article 19 of the Indian Constitution talks about freedom of speech and expression. This constitutional right is not absolute and can be imposed on reasonable restrictions in India, as under Article 19(2), in the interest of the sovereignty and integrity of India, to maintain peace, decency, and law and order in the country of India. Section 144 of the Criminal Procedure Code, 1973 and Article 19(2) of the Constitution of India can only be used as a last resort. Section 144 of the Criminal Procedure Code, 1973 is a means to curb a situation of apprehend danger in case of emergency, thus under Section 144 he Criminal Procedure Code, 1973, arbitrary right is guaranteed to the Government to impose a ban on internet access. Additionally, a complete shutdown of this system is a monumental restriction on the guaranteed right of free speech and expression. Therefore, shutting down the Internet under Section 144 of the Criminal Procedure Code, 1973 is not only a colossal violation of Article 19 of the Indian Constitution but is also not the legitimate use of powers under Section 144 of Criminal Procedure Code, 1973.[6]
Article 19 (2) of The Constitution of India, allows the Government to impose reasonable restrictions which are necessary to protect the public peace and maintain law and order throughout the nation. In the judgement of Anuradha Bhasin V. UOI [7], it was held by the judges that the freedom of speech and expression and the freedom to practice any profession or carry any trade, business, or occupation through the Internet enjoys constitutional protection under Article 19. Thus, the restriction of fundamental rights must comply with Articles 19 (2) and 19 (6) of the Constitution of India because these rights are not absolute and impose certain restrictions on the welfare of the public at large.
View of Different Courts on Internet Shutdown:
Recently, when the anti-Citizenship protests were going on in many places including Delhi, orders for the internet shutdown were issued by the State police to maintain peace throughout the nation. Also, all the petitions were dismissed by the Delhi High Court that challenged the internet shut down.
In the case of Gaurav Sureshbhai Vyas v. State of Gujarat [8], the Special Leave Petition (SLP) was filled with challenging the use of Section 144 of the Criminal Procedure Code, 1973 for the internet shutdowns. The Gujarat High Court rejected the appeal on the grounds the Government has the power to shut down the internet. It was said by the Chief Justice T.S Thakur that “It becomes very necessary sometimes for law and order.”
CONCLUSION
Though the internet has become an important medium for communication and trade throughout the world, still the government has the power under section 144 of the Criminal Procedure Code, 1973 and article 19(2) of the Indian Constitution, to suspend the internet connectivity throughout the country or in a particular region, in order to maintain public peace and to maintain law and order throughout the Indian territory. Article 19 (2) of The Constitution of India, allows the Government to impose reasonable restrictions which are necessary to protect the public peace and maintain law and order throughout the nation, the restriction of fundamental rights must comply with Articles 19 (2) and 19 (6) of the Constitution of India because these rights are not absolute and impose certain restrictions. For the welfare of the public at large. Thus making the internet shutdown valid to protect the public at large from situations of unrest.
[1] See Indian Telegraph Act, 1885 which states: “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”
[2] Gaurav Sureshbhai Vyas v. State of Gujarat, Petition (PIL) No. 191 of 2015
[3]Shikhar Goel, https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law, (last visited Sept. 6, 2020)
[4]Shikhar Goel, https://www.epw.in/engage/article/internet-shutdowns-strategy-maintain-law, (last visited Sept. 6, 2020)
[5] Software Freedom Law Center, https://www.thequint.com/voices/opinion/parliament-telecom-suspension-rules, (last visited Sept. 6, 2020)
[6] https://sflc.in/legality-internet-shutdowns-under-section-144-crpc (last visited Sept. 6, 2020)
[7] 2020 SCC OnLine SC 25
[8] Gaurav Sureshbhai Vyas v. State of Gujarat, Petition (PIL) No. 191 of 2015