The Republic of India today has been labelled the Internet shutdown capital of the world, a label that all citizens of the Republic regret to attain. Internet in the present age has become an essential tool for citizens, especially when it comes to the right of free speech and expression under Article 19(a) of the Indian Constitution and the Right to trade, profession and occupation under Article 19(g).
The Internet’s uses and importance today, both in our personal lives and for the economy, is known. Thus, the question arises, what is the impact of an Internet shutdown?
Today the Internet is at loggerhead with liberty and security. The challenge before us is whether we want security or liberty, something which the citizens of the Republic must reflect upon.
The Fight Between Liberty And Security
Liberty and security have always been at loggerheads and have always become a point of contention both for the State and the citizens. Liberty is the pillar on which the State stands, but then liberty exists without security.
Liberty and security must always be like a stationary pendulum, for the pendulum of choice must never be in the extreme to compromise the other side.
The Internet today is a reflection of liberty, especially in light of Articles 19(a) and 19(g). Therefore, depriving the citizens of the Internet is a violation of liberty by the State. But with this said, it does not mean that security is inferior to liberty.
The idea is not to suggest that it’s better to be free than to be sure. The idea is to ensure that the citizens of the Republic have all rights and liberty at a given point in time while ensuring security for all at the same time.
In this impassioned post, YKA user Sheikh Hussain talks about the internet blockade in Kashmir. #4GForAllhttps://t.co/MpDMot7quF
— Youth Ki Awaaz (@YouthKiAwaaz) August 11, 2020
Internet shutdowns and their contentions have been taken up to the highest court of the country. The Supreme Court of India in the Anuradha Bhasin Vs. Union of India and Ors looked specifically on the matter of Liberty Vs. Security.
Liberty can be curtailed by the State, but that curtailment must always be tested for its reasonableness and proportionality, least be stated that it must be under the law of the land.
Internet Shutdowns Vs. Citizens
There have been a total of 552 cases of Internet shutdown in India from 2012 till the end of 2021, with the longest shutdown being coincidental of the same number, 552 days in the Union Territory of Jammu & Kashmir. This being a preventive shutdown, the beginning saw a restriction on landline and mobile services as well.
Preventive shutdowns, which are imposed in anticipation of an event, have been increasing exponentially in the country since 2016. In 2021, there were just three cases of a reactive shutdown, which are imposed to curtail an existing law and order situation, but 42 cases of preventive shutdowns.
Section 5 of The Indian Telegraph Act 1885 gives power to the executive to curb the Internet on the ground of public emergency or to safeguard public security. The executive has, however, imposed a shutdown both preventive and reactive for reasons other than this, taking shelter under the same section of the act.
In 2020, 69% of the Internet curbs were due to political instability, while 4% were due to communal violence and 7% were due to protests. The Internet has been curbed, citing elections, religious holidays and exams, among other reasons. (Al Jazeera)
Internet shutdown due to examination is a fairly common scenario in Rajasthan, with sometimes it being the patwari recruitment examination or the more common Rajasthan Eligibility Examination for Teacher (REET). The Internet has been curbed even for the Rajasthan Administrative Services (RAS) Examination.
The rationale behind these shutdowns is to conduct the public examinations in a fair manner without any instance of unfair means and practices.
In case of Internet shutdowns, the procedures to be followed are clearly stated under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety rule) Rules 2017 notified under Section 7 of The Telegraph Act 1885.
The rules are clear that any officer but the Home Secretary in the Government of India must not suspend the telecom services or the Secretary level officer in the respective State Government’s Home Department.
It is only in unavoidable circumstances that an officer not below the rank of a joint secretary issues such an order. Even in such a situation, it must be duly authorised by the Union Home Secretary/Respective State Home Secretary. In the case of Rajasthan, however, we see an order related to the Internet shutdown being brought in by the divisional commissioner and not the Home Secretary (Rajasthan).
From 23 to 24 October, 2021, when exam-related Internet shutdowns were last imposed in Rajasthan (in three districts, Jaipur, Dausa and Bikaner) the government was expecting around 15 lakhs candidates.
For the candidates appearing, liberty had to be restricted for security, but then for the remaining millions of citizens who had nothing to do with the examination, among whom most might not even be aware of the examination, why was their liberty curtailed?
If the argument which the government has is of “public interest”, then by the same rationale, the Internet in the entire country must be shut down when the Union Public Service Commission conducts its examination.
The Test Of Proportionality
The idea is not to point fingers at the institutions but only to ask questions as a duty-bound citizen of the Republic. To what extent can “public interest” be used to curtail liberty over security? Maybe what the citizens want is a test of proportionality to ensure a rationale between the objective and the measures adopted to achieve it.
For the pendulum of choice to not go in extreme between liberty and security, it is imperative that interventions be proportionate to the need for such interventions and not only sanctioned by law but also carried out in accordance with the law. It is essential to understand that the measures adopted to achieve the objective must not infringe to an extent than necessary for the fulfilment of the aim.
The citizen’s reply to the Internet shutdown and debate over liberty and security is that whenever their rights are infringed, and thus, liberty compromised, it must be based on the existence of a rational and legal connection between what has to be achieved and how it has to be achieved.
Written by:
Vjay Paul, Assistant Professor, Department of Humanities & Social Science, Graphic Era University, Dehradun.
Jyoti Kamboj, Research Associate, Centre for Advanced Studies in Social Science, Dehradun.