Internet Shutdown and Its' Validity

-Yugashree,

Intern, Legal Angles Patna




In the period of early 1900’s an idea called “World Wireless System” has been created by a person called Nikola Tesla. After that few others like Paul Otlet and Vennever Bush introduced searchable storage of books. In 1969 Advanced research Projects Agency Network which is an agency funded by United States Defense Department in short ARPAnet allowed multiple computers to connect to a single network by using packet switching[1] and it started developing day by day and now we are in a condition that we cannot survive like others in the world if access to internet is unavailable. But in India in the state of Jammu and Kashmir experienced the most lengthy internet shut down which makes us know why there is such kind of shut down is done.

A representation of democracy is the equilibrium between the powers and rights of citizens. The invention of the Internet made it possible to exercise freedom of speech, expression, organization and association. It has indeed made methods of communication feasible, but has created a self-expression outlet, that otherwise would not be available in conventional media. Moreover, several nations implements contingency measures through existing state laws, which enable governments to monitor and restrict or monitor communications networks as a state of emergency, or preserve national defense, or are not always explicitly specified in the circumstances under which a state may exercise that power.

Telecommunications companies also have a duty to execute government orders to interrupt telecommunications either through cellular networks in territories in particular or through Internet connectivity in total or through a specific Web-based message program.

What is Internet Shutdown?

The need for internet infrastructure due to an order made by a government agency is subject to an utter ban. The duration and length of time might be restricted to a certain location and date. It could also extend continuously/ occasionally. The connection might be limited to particular object say for example for mobile phones or desktops further it might limit to use of social media like Face book, Whatsapp, Twitter, etc.

International Scenario on usage of Internet and validity of Internet Shutdown:

In 21st century fundamental rights of an individual cannot be availed without internet as it plays a major role in expressing views and thoughts. Right from the beginning of the day till the end an individual completely relies on internet to run his life at least the majority of the population in this world depends on Internet. International UN principles have defined the right to creation and are generally recognized in various territorial legal systems worldwide.

United Nations Human Rights Commission (UNHRC):

· 2009- Passed a resolution which stresses the human rights significance of the Internet.

· 2012- Some of the main agreements creating a connection here between security and advancement of economic, financial, cultural and human rights on the internet have been accepted.

· 2014- Digital human rights resolutions had been adopted.

· 2016- In particular, this resolution makes a major change on the previously unresolved problem of Internet closures. It reaffirms the right to freedom of expression and opposes any Government action to prevent or obstruct Accessing the internet[2].

Universal Declaration of Human Rights (UDHR):

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (Article-19)[3].

International Telecommunication Union:

2012 World Telecommunications Conference[4]: In anticipation of the summit, the International Trade Union considered for a consultation process on the revised report. It stated that perhaps the proposition will permit the state restrictions or blocks data transmitted through the internet, and establish a public internet communication shrivelling administration, along with demands for the identification of those sending and receiving details. It will also permit governments to close the internet if it is believed that it can interfere in other Member countries internal affairs and that private information could be accessed.

International Covenant on Civil and political Rights:

The UN Human Rights Committee (a separate body of the UN Human Rights Council) oversees ICCPR and reviews detailed reports on the implementation of the rights by Countries. Article 19 [5]mandates freedom of expression reads as

· Everyone has the right to hold opinions without interference.

· Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

INDIAN LAWS ON VALIDITY OF INTERNET SHUTDOWN:

Constitution:

Article 19: The freedom of speech, freedom of association and assembly is assured in Article 19(1) of the Indian Constitution. Simultaneously the provisions of Article 19(2) limits freedom of speech, freedom of association and freedom of gathering in the way of national security, courteous relations with foreign countries, courtesy or ethics of the public peace, disrespect for slander of the courts, incitation to sovereignty or the integrity of India[6].

Criminal Procedure Code:

Section 144:

This section enables shut down of internet on a short term basis for the nation’s security. The internet shutdown entirely became a significant issue because it infringes on freedom of speech assured in accordance with Article 19 (1) (a) of the Indian Constitution. (a) sufficient ground, (b) immediate prevention, and (c) a speed-remedy to avoid a possible obstruction, annoys or injuries to any individual or harm to lives or security of a human being, or a social disruption in public peace, or interruption, or disruption, or an affront to anyone[7].

Information Technology Act, 2000:

The section lays down a procedure and protections under which control blocking is to be performed. The central government will be informed about this accordingly.

Section 69A -Power to issue directions for blocking for public access of any information through any computer resource- it states that in reasonable circumstances an officer authorised under the act for the purpose of integrity and sovereignty of the nation and the reasons for the shut down has to be made in writing.

WHY INTERNET SHUTDOWN?

Before going into all that bunch of reasons let us look at a survey which says that India leads the world with 67% of total internet shutdowns as per the Internet advocacy group according to a study[8]. Shut downs are not only made in Jammu Kashmir but shut downs were also experienced in Assam, Tripura, Meghalaya, Arunachal Pradesh and parts of West Bengal, Karnataka and Uttar Pradesh.

The main reasons for shut down will be due to the trending activity across the country which is protesting against the government. The chief cause of this action is to share brutal photos and slanderous remarks against India, who kept disturbances for months using Whatsapp, Twitter and other social media services[9].

India learned from the 26/11 aerial assault which aggressors could use the internet to acquire information and change their strategy. Many individuals are not actively involved in such operations, but rather encourage them to speak out or share half-realities or false information, because the internal security of the nation is at higher risk. Internet closure is a way of preventing the proliferation of their involvement.

The Digital world has led to the era of the borderless states, within which individuals interact easily throughout boundaries something that is positive. There is flourishing trade and commerce interaction and engagement. On the other hand, there is not so much distress on both the contrary as well. For example, telecom is by ISIS and Taliban and various other terrorist groups to train young people and also to attract them to do terrorist attacks and motivate them.

While the government is obliged to make sure public safety has granted departments the legal obligation to intercept some communication, this only makes use of the internet if things go out of hand. De facto denial of internet services seems to have become a mechanism for state's suppression across the world today. The next most likely causes were to prevent rumour (religious or national) of all kinds. That is because of rumours that sometimes even unrest occurs, and it was during any major decision or action, the state also prohibits the Internet as a preventive measure[10].

Voluntarily, people are posting often quite offensive and provocative messages, outright lies, slanted factual evidence or images that in effect aggravate the receptive individuals, and have become a mechanism of galvanizing events and people that can trigger the breakup of law and order leading to life or property damage or damage. It really is safer to go to cause of problems when someone is talking of sufficient preventative measures in order to avoid circumstances to take that step. Therefore when situations are essential, the above mechanism must be stopped so that anti-social elements or individuals of specific interest or communal perspectives cannot create an online law and order menace[11].

SHUTDOWN VIOLATES FUNDAMENDAL RIGHTS?

The Internet shutdown alike damages growth in the economy as well as the right of individuals to freedom of expression and access to data. About 196 internet blackouts were detected globally in 2018 by "Access Now[12]".

Bhasin v Union of India and Others:

[13]Supreme Court of India on Kashmir shut down of Internet ruled out:

There were five key issues before the Supreme Court for determination:

· whether the government could claim an exemption from producing all the relevant orders pertaining to suspension of telecommunications services

· whether freedom of expression and freedom to practise any profession or to carry on any occupation, trade or business over the internet constituted part of the fundamental rights under the Constitution

· whether the government’s action of prohibiting internet access was valid

· whether the imposition of the relevant restrictions were valid

· Whether the freedom of press of the petitioners were violated due to the restrictions.

And after determining the key issues Section 69A of the Information Technology Act, 2000 the Supreme Court came to a conclusion that the act permits access to information to be blocked and the court held the following-

· Internet access is a fundamental right

· Any orders in regard with 144 of Cr.P.C should be published.

· Telecom Suspension Rules 2017 requires every order to be made with an unavoidable reason.

· Shut down of internet should be temporary in nature.

TIME LINE of Shutdown in India:

The following are the few regions in the country were longest internet shutdowns were imposed[14].

State/ Union Territory

Duration

Start Time

End Time

Kashmir, Jammu and Kashmir

213 Days

4th August 2019

4th March 2020

Kargil

145 Days

4th August 2019

27th December 2019

Kashmir, Jammu and Kashmir

133 Days

8th July 2016

19th November 2016

Darjeeling, West Bengal

100 Days

18th June 2017

25th September 2017

Other than these few short shutdowns for one or two days even a week were imposed by the government in the states of Rajasthan, Gujarat, etc.

Kashmir’s Internet Shutdown Political or Protective:

The Internet has proved to have been the solutions to all individual requirements in today's modern world internet users is quite general. Usually, people will believe easily in the false rumours and this can transmit to people through internet then cause more harm than good throughout the region by other ways. This is why often the state forbids the Internet in Kashmir and not only in Kashmir but in most parts of the nation where the government thinks fit it can monitor the situation by taking such a precautionary step. It is a form of precaution and no political reasons explicitly.

Conclusion:

In order to reach rescue services during every shutdown or a disturbance there is need to discover new possibilities with telecoms providers. The public at all occasions, as well as during internet closures, be assured connectivity and contact with emergency services.

The government must publish reports on the shutdown including how long it would last or when it will be ended without fail during shutdown. It has also been suggested that the state responsible must publish an official press release once the closure is been approved, in an attempt to increase accountability and minimize uncertainty, to list its information, its effect and the purpose or legal grounds.

The shutdown will somehow affect peace and harmony among the imposed areas because if it is not imposed there are possibilities that it would lead to a huge threat to public order and safety like the 26/11 attack and if imposed it will affect the fundamental rights enshrined under the constitution of India and the decision in regard to shut is neither good nor bad idea however there are various technological advancements prevailing which can be used to block only the respective sites which will affect the public order and let others ones free.

References:

[1] Kim Ann Zimmermann & Jesse Emspak Internet History Timeline: ARPANET to the World Wide Web” (June, 27, 2017) https://www.livescience.com/20727-internet-history.html. [2] UNHRC official website https://www.ohchr.org/en/hrbodies/hrc/pages/home.aspx. [3] The Universal Declaration of Human Rights http://ccnmtl.columbia.edu/projects/mmt/udhr/article_19.html. [4] Deniz Duru Aydn The laws that let internet shutdowns happen (25/ May/ 2016- 11.01 AM) https://www.accessnow.org/laws-let-internet-shutdowns-happen/. [5] United Nations Human Rights- https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [6] Bare Act - Constitution of India. [7] Section 144 of Cr.P.C- Bare Act. [8] Internetshutdown.in- https://www.thehindubusinessline.com/specials/india-file/the-trauma-of-internet-shutdown/article30560717.ece [9] Forum Gandhi The Trauma of Internet Shutdown (January 14 2020) https://www.thehindubusinessline.com/specials/india-file/the-trauma-of-internet-shutdown/article30560717.ece#. [10] Outlook Web Bureau (10 January 2020) Fundamental Right: All You Need to Know about Longest Internet Shutdown in Kashmir https://www.outlookindia.com/website/story/india-news-sc-says-internet-fundamental-right-all-you-need-to-know-about-kashmirs-longest-internet-shutdown/345478. [11] Internet shutdown issue Paper- https://docs.google.com/document/d/13oHTM4E_34eTwKrnCgKMkN5qEWg1qkUc_7_qsGOI9LY/edit. [12] Berhan Taye and Sage Cheng (2019)-The State of Internet Shutdown. Access now.https://www.accessnow.org/the-state-of-internet-shutdowns-in-2018/ [13] Anuradha Bhasin vs. Union of India (https://indiankanoon.org/doc/82461587/) [14] Report on Internet shutdown in India by internet shutdown.in- (https://internetshutdowns.in/)

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