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[Sansad TV] Perspective – Internet: Regulating the Ban

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Context

  • The Parliamentary Standing Committee on ICT has observed that Internet today is an indispensable part of everyday lives of citizens.
  • Hence, 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.

Internet shutdowns in India

  • Nowadays, India is widely considered to be a world leader in cutting off access to the Net.
  • Yet, there are no detailed official data on Internet shutdowns in India.
  • Taking a serious note of the situation, the Supreme Court has for the first time set the stage for challenging such suspension orders before courts.
  • It has directed the government to mandatorily publish all orders permitting Internet shutdowns. It has opened such decisions amenable to judicial review.

Recent statistics

  • India leads the global tally in suspension of internet services.
  • An internet tracker internetshudowns.in points out there have been 550 internet shutdowns in India since 2012, more than 50 per cent of which were imposed since 2019.
  • The longest shutdown, lasting for 552 days, was imposed in J&K from August 4, 2019 to February 6, 2020.

Mechanisms allowing Internet Shut-downs

[1] Temporary Suspension of Telecom Services Rule, 2017

  • Home Departments in the states are mostly the authorities that enforce shutdowns, drawing powers from The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
  • The decisions are reviewed by a state government review committee. The central government also has powers under this law, but has not used it.

[2] CrPC

  • Section 144 of the Code of Criminal Procedure has enabled many of the shutdowns in the recent past, especially until the time the telecom suspension Rules came into force in 2017.

[3] Telegraph Act, 1885

  • Less frequently used is The Indian Telegraph Act, 1885, whose Section 5(2) allows central and state governments to prevent the transmission of messaging during a public emergency or in the interest of public safety or in the interests of the sovereignty and integrity of India etc.
  • This act stipulates 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.
  • Under this the government has the power to block the transmission of messages during a public emergency or for public safety.

Need for Internet Shutdowns

  • Civil unrest: Internet serves as a medium for the transmission of information through pictures, videos and text that have the potential to cause civil unrest and exacerbate the law and order.
  • Fake news: Shutdowns in order to block the flow of information about government actions or to end communication among activists and prevent the spread of rumors and fake news.
  • Rumors: Shutdown helps prevent the “spreading of rumors and misinformation using social media platforms which can hinder peace and law and order”.
  • Preventive Response: Cutting off the Internet is both an early and preventive response to block restive groups to organize riots against the Government.
  • National Interest: The Internet cannot be independent of national sovereignty. Therefore, the necessary regulation of the internet is a reasonable choice of sovereign countries based on national interests.

Issues with the Kashmir Shutdown

  • Arbitrary: The Internet shutdown in Kashmir was is often alleged to be non-compliant with the Rules.
  • Unnecessary: The Rules require the suspension to be temporary; also, the orders did not provide reasons for the restrictions.
  • Discriminatory: Shutdowns in Kashmir often led to obstruction for essential services such as e-banking and hospitals.

Supreme Court Judgment on Internet Shutdowns

  • The court ordered the government to review its order, ruling that the freedom of speech and trade on the Internet is a fundamental right under Article 19.
  • Non-recognition of technology within the sphere of law is only a disservice to the inevitable.
  • The court said that because the Rules require the order to be in accordance with Section 5(2) of The Telegraph Act, the order must be during a “public emergency” or in the “interest of public safety”.
  • Also, the suspension must be “necessary” and “unavoidable”.
  • In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy,” the court said.

Legal basis for Right to Internet

  • The access to the Internet is a right very similar to what the Supreme Court held with respect to the right to privacy in Justice K.S. Puttaswamy.
  • The Human Rights Council of the United Nations Resolution dated July 2, 2018, on the promotion, protection and enjoyment of human rights on the Internet, made important declarations.
  • It noted with concern the various forms of undue restriction on freedom of opinion and expression online, including where countries have manipulated or suppressed online expression in violation of international law.

Why is the Internet a necessity?

  • Information: While the Internet is certainly the main source of information and communication and access to social media, it is so much more than that.
  • Education: It is a mode of access to education for students who do courses and take exams online. Access to the Internet is important to facilitate the promotion and enjoyment of the right to education.
  • Livelihood: People working in the technology-based gig economy — like the thousands of delivery workers for depend on the Internet for their livelihoods.
  • Healthcare: It is also a mode to access to health care for those who avail of health services online. 

Dysfunctions created by shutdowns

[1] Economic impact

  • While there is no proven benefit of closing down the internet, there are serious economic repercussions.
  • A report by the Brookings Institute adjudged India to have topped the list by incurring losses to the tune of $968 million in 2016 itself.
  • Over the past five years, some 16,000 hours of Internet shutdowns cost the economy a little over $3 billion, according to estimates in a report by the Indian Council for Research on International Economic Relations (ICRIER).

[2] Governance hurdles

  • In Sept. 2018, the Dept. of Telecommunication had acknowledged the adverse impact of a rising number of internet shutdowns that State governments are ordering.
  • The Govt. has embarked upon a programme to deliver services through mobile and internet apart from promoting a cashless economy.
  • Neither banking transactions using credit and debit cards nor internet banking can be done, which leads to hardships to common citizens.

Way Forward

  • Internet shutdowns should be used as the option of the last resort.
  • There exists no qualitative or quantitative evidence to show that internet shutdowns are effective tools to restore normalcy.
  • In fact, the internet itself can be used to resolve the problem.
  • For example, the Government can have verified sources to spread legitimate information across various mediums stating areas that are safe/affected the updated status of the situation, etc.
  • State interests like security are important because they are the prerequisites for us to exercise our freedoms. However, in pursuing this, the freedoms themselves cannot be suspended.
  • Therefore, the government needs to clearly lay down a comprehensive framework, stating the conditions behind such Internet shutdowns.

Conclusion

  • It is time that we recognize that the right to access to the Internet is indeed a fundamental right within our constitutional guarantees.
  • The Internet is pretty much a basic human right, even if not legally defined as such, for most parts of the world — without access to the virtual world, a very large number of vital human activities simply stops.
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