Apar GuptaA new report from the Center for Technology and Innovation at the Brookings Institute shows that India and Iraq share the dubious position of reporting the highest number of incidents involving government-mandated shutdown of internet access. In fact, India joins Algeria, Iraq and Uganda in the list of countries where internet services has been suspended even on the grounds of preventing potential cheating in exams.
Figures released recently by the Centre for Communication Governance at National Law University, Delhi, indicate that 11 Indian states have forced 37 internet shutdowns in the past two years. This trend is corroborated by tracker data maintained by the Software Freedom Law Centre India. We need to understand the impact these have on our civil liberties, economic and social well-being, and the federal structure of the country.
The Digital India programme of the Union government seeks to improve the delivery of governance with the assistance of the internet. One would logically then assume that ensuring unhindered access to the internet would be a governmental priority at all levels, given that a disruption in internet access would interfere with governance and the lives of citizens. Instead, we have seen the number of shutdowns rising.
Most of these disruptions are being carried out by state government agencies, often under the terms of broad legal powers — such as Section 144 of the Code of Criminal Procedure — derived from 19th century British Raj era provisions meant to empower police units and district administration officials to enforce curfew and confiscate property. When responding to protests or other public developments, many police officials and district administrators across India are making it part of their standard operating procedure to use this vague legal provision to issue orders to telecom providers to suspend mobile internet access across districts, and sometimes the entire state.
The Telegraph Act — via Section 5(2) — provides for a more specific legal power to restrict or otherwise interfere with the transmission of messages on the direction of the Union or state governments. But this provision lacks defined procedure when it comes to internet shutdowns. This very section was originally used to justify the tapping and interception of phone calls, until the Supreme Court in 1998 held it would be unconstitutional if the government did not specify additional, clearer rules on the process of issuance and safeguards regarding such interception orders. It would be reasonable to expect a similar treatment for the power to suspend internet services.
The Information Technology Act, India’s principal information technology sector law, has provided for another tool, even if not a perfect one. Instead of a larger suspension of the internet itself, it provides for a proportional, limited power in favour of the Central government — and state government officials in emergency cases — to issue individual web content blocking orders when certain grounds are met.
Given that telegraphs were reserved to the Union List of the Constitution and the existence of specific Central legislation already on this topic and that mobile companies are licensees of the Union government, this trend of shutdown orders by state government agencies undermines the division of power between the Union and the states.
The harm caused by internet shutdowns are not merely academic. Disrupting internet access causes immediate economic harms beyond the e-commerce sector; even traditional brick and mortar businesses rely on internet communications. The Gujarat Chamber of Commerce last year estimated losses of thousands of crores resulting directly due to internet shutdowns in that state, with the Maha Gujarat Bank Employees Association stating that the banking sector faced disruptions in transactions amounting to Rs 1,500 crore daily. The Brookings Institute report found that India suffered an estimated national economic loss equivalent to $968 million — the highest harm caused to one country globally in their study — due to internet shutdowns. And we have only just begun to understand the social consequences of disruptions in this medium of communication.
A key question that pervades this debate is whether the internet should be viewed as a frivolity or a necessity. The answer was given by the Supreme Court of India in its landmark Shreya Singhal judgment. It recognised the internet as an essential medium to further our constitutional right to freedom of speech and expression. Even though the same court has — for now — chosen to not rule on the constitutionality of internet curfews when it did not grant leave to appeal in Gaurav Sureshbhai Vyas v. State of Gujarat, the route for future legal challenges is open.
However, the best path forward may be action and policy clarity from the Union government, upholding its responsibilities under our federal legal framework than relying on the courts. Unhindered access to the internet has to become the normal in the everyday life of all Indians.
This article has been co-authored with Raman Jit Singh Chima and has been originally published in The Indian Express on October 26, 2016.