Insights into Editorial: Making the Internet disappear

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Insights into Editorial: Making the Internet disappear


 

no internet

 

Context:

The authorities suspend mobile internet and broadband services whenever there have been violence, widespread protests because of social media posts or otherwise.

Authorities justified the course of action as it was issued to prevent any disturbance of peace and public order.

If the government wishes to keep law and order, then it may find other, less drastic ways such as increasing security or even winning the trust of the people and addressing their grievances.

Some of the internet shutdowns that have taken place at India in 2017 so far

India shut off the internet in an attempt to maintain order.

  • The J&K valley in 2017 so far, there have been 10 cases of internet suspensions due to various incidents. Recently, due to the killing of Amarnath Yatris in Kashmir, internet services were terminated as a precaution.
  • In Nagaland, mobile internet services were taken down multiple times from January 30th 2017, as clashes took place between urban local bodies and the state government over reservation in civic body elections.
  • Governments in the northern Indian states of Punjab and Haryana shut down citizens’ internet access and text messaging services just before a verdict was to be released on a high-profile rape case.
  • Similarly, due to unrest in Darjeeling over Gorkhaland agitation, web services were taken down.

Why does internet shutdown become a major cause of concern?

In the 21st century, the Internet has assumed an increasingly important place in our lives.

  • From banking to political speech, and from complex medical procedures to the purchase of basic necessities, important aspects of our economic, social, and cultural life now depend upon the Internet.
  • Many of the fundamental rights guaranteed by our Constitution — the freedom of speech and expression, the freedom of association, the freedom of trade — are exercised in significant part on the Internet.

But the growing importance of the Internet in personal life, as well as its growing use to challenge governmental authority, has led to a backlash, where governments attempted to control the Internet in case of any law and order issue.

The increasing number of government mandated shutdown of Internet access have with serious consequences both for civil rights, and for business.

What is the legal basis of Internet shutdowns in India?

A few years ago, the High Court of Gujarat invoked Section 144 of the Code of Criminal Procedure (CrPC) to uphold an Internet shutdown.

Section 144 has its roots in the colonial-era British police-state and it (Section 144) is primarily used to secure an area from damage or harm in the case of a potential or actual law and order disturbance, to ban protests or other forms of political action in places such as central Delhi.

  • A key point to note in the Gujarat High Court’s decision was that the provisions of the CrPC cannot directly be transposed into the online world.
  • An Internet shutdown takes away an entire — and critical — platform of communication and work altogether. In case of section 144, it only ends up placing certain specific areas beyond the bounds of large assemblies and associations for a temporary period of time.

In an attempt to adjudicate a fair constitutional balance between the fundamental rights of individuals on the one hand and the interests of the state in maintaining law and order on the other, the Supreme Court has often insisted that the state’s action must be proportionate: that is, there ought to be no greater invasion of the individual’s right than what is strictly necessary to achieve the state’s goal.

India responds to internet shutdown criticism by codifying rules to make it legal. The communication ministry has issued new rules that allow the government to temporarily shut down phone and internet services during a “public emergency” or for “public safety”.

The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules

In exercise of the powers conferred by section 7 of the Indian Telegraph Act, 1885 (the Central Government hereby makes the following rules to regulate the temporary suspension of telecom services due to public emergency or public safety.

  • Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government
  • In unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, Provided that the order shall be subject to the confirmation from the competent authority within 24 hours of issuing such order. Or else the order shall cease to exist.
  • The Order shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day.
  • The directions for suspension shall be conveyed to designated officers of the telegraph authority or to the designated officers of the service providers in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police.
  • The telegraph authority and service providers shall designate officers in every licensed service area as the nodal officers to receive and handle such requisitions for suspension of telecom services.
  • The Central Government or the State Government, as the case may be, shall constitute a Review Committee and it shall meet within five working days of issue of directions for suspension of services.

Why is there criticism against newly framed Rules?

The new rules were meant to bring transparency and clarity to the procedure through which Internet services were suspended.

  • However, there was no transparency or democratic debate when these rules were framed;
  • Their scope is vast, and includes phone calls as well as Internet calls; and there is no provision that envisages a lifting of the shutdown after any specific time.
  • But perhaps what is most important about these rules is the virtual non-existence of mechanisms of accountability.
  • Once the order is issued, the scope of “review committee” is limited to decide whether the declaration was valid or not.

The need of the hour

The concentration of more power in the hands of the government will only further disempower the individual against the state, and achieve a temporary illusion of security at the cost of a permanent loss of freedom.

  • This is a power that may be liable to all kinds of misuse, and hence it must be tempered with stringent safeguards.
  • Just like the police must present an individual before a court within 24 hours if they want to keep her in custody, the government must, by law, subject Internet shutdowns to judicial scrutiny as soon as reasonably possible.
  • And courts must take into account the exceptional character of Internet shutdowns and their impact on core civil liberties before validating them.