CONTEXT 

• In January, 2020, the Supreme Court of India held that access to information via the Internet is a fundamental right under the Indian Constitution in the case of Anuradha Bhasin vs Union of India.
• The top court also ruled that any restriction on Internet access by the Government must be temporary, limited in scope, lawful, necessary and proportionate.
• The Court reiterated that the Government’s orders restricting Internet access are subject to review by Courts.

EXPECTATION Vs REALITY

• It was expected that the decision would limit the instances of Internet suspension to only those exceptional situations where there is a public emergency or a threat to public safety — the legislatively mandated prerequisites for restricting Internet access.
• Unfortunately on the contrary to what was expected these promises have remained unfulfilled.
  • The year following the decision, India saw more instances of Internet shutdown than the year preceding it.
  • India’s Internet restrictions also accounted for more than 70% of the total loss to the global economy in 2020.
  • Hence, India remains infamous as the Internet shutdown capital of the world.

RECENT RESTRICTIONS

• A few days ago, all Internet services had been shut down by the Government of the Union Territory of Jammu and Kashmir (J&K).  In present, access to mobile data in the Valley of Kashmir has also been restricted.
  • These restrictions have been issued in the wake of the death of a hardliner separatist leader of the region.
• Similar restrictions have been ordered by the government of Haryana in five different districts following farmers’ protests that were organised there.

ISSUE WITH SUCH RESTRICTIONS

• • The governments have published the orders restricting access in these instances, but such publication remains an exception and not the rule. For instance, in Haryana, orders for suspension of the internet are on social media but have not been uploaded on government websites.
  • According to an Internet shutdown tracker maintained by the Software Freedom Law Centre, in July and August, the government of J&K suspended Internet services on five separate occasions.

• But the suspension orders for these instances have still not been uploaded on the government’s websites.

• This situation is not restricted to the union territory of Jammu and Kashmir, but the compliance with Anuradha Bhasin remains low in other parts of India as well.

CONCERNS WITH NON-PUBLICATION

Impediment to justice

• Without the publication of Internet suspension orders, those aggrieved with the restriction cannot approach a court of law to question an order’s legality in the absence of the order.
  • Even if they do, the court may direct the Government to produce the order, but this will allow the Government to delay production of the order until after the restriction has subsided.
  • This enables the Government to get away with illegal restrictions.

Undermines public confidence

• The non-publication of orders also undermines public confidence in the Government.
  • The Internet is a necessity in this day and age, and restrictions without publicly disclosed reasons create a trust deficit.

Lack of adequate legislation

• The Union Government has not done enough to give statutory recognition to the directions in Anuradha Bhasin.
• In 2020, it amended the Telecom Suspension Rules, 2017 to limit Internet suspension orders to a maximum of 15 days.
  • However, the amendment did not include an obligation on the Government to publish orders nor did it include the Supreme Court’s direction to undertake periodic review of these orders.

Lack of awareness

• Since the suspension orders are not published, the governmental non-compliance with the law is difficult to comprehend.
  • One has to study the decision of the Supreme Court as opposed to simply looking at the rules to understand the obligations on the Government.
• The experience with Section 66A of the Information Technology Act has shown that if Supreme Court decisions are not statutorily recognised, the officials enforce the law incorrectly simply because of a lack of awareness.
  • For example, the State of Meghalaya in reply to an RTI application stated that it was not even aware of the judgment in Anuradha Bhasin even though eight months had passed since the Supreme Court’s pronouncement.

INTERNET SUSPENSION- ITSELF IS A PROBLEM

• Internet suspension also remains a problem independent of non-compliance with the directions of the Supreme Court.
• In 2020, the Indian economy suffered losses to the tune of $2.8 billion due to 129 separate instances of Internet suspension, which affected 10.3 million individuals.
• The Internet is a source of information, entertainment, health care, education, livelihood and a platform for the members of Indian society to interact with each other and the world at large.
• The harm — economic, psychological, social, and journalistic — caused by such suspensions outweighs any speculative benefits.
• The governments often restrict access to any form of communication on the ground that the ‘provocative material on social media’ could misguide the general public and result in a law and order situation.
  • But it is to understand that offline rumours can also ‘misguide the public’, but in the case of internet suspension the individuals will not have access to the Internet to determine the veracity of those rumours independently.
• Internet restrictions are often justified on the ground that they are limited to mobile data services. These contentions also miss the point.
  • According to a 2019 Telecom Regulatory Authority of India (TRAI) report on Indian Telecom Services Performance Indicators, mobile device users (dongle and phone) constituted 97.02% of total Internet users.
  • Only 3% of users have access to broadband Internet.
  • These numbers are not likely to have changed significantly since then, since broadband Internet continues to be expensive.
  • It follows from this that Internet restrictions also tend to adversely affect those from lower socio-economic backgrounds more.

WAYFORWARD

• Internet suspensions ought to be imposed in times of emergency and not to stifle the democratic exercise of the right to protest. In those times, the Internet is a necessity to seek help.
• The Internet should be used as a tool to verify rumours, and enables individuals and the Government to disseminate the truth.

CONCLUSION

• The Supreme Court, in Anuradha Bhasin has permitted the Government to restrict Internet access only in limited circumstances.
  • Also, the Parliament has allowed these restrictions only in a public emergency or when there is a threat to public safety.
• Yet, to much dismay, Internet restrictions are much more common than desirable and cannot be challenged because of a lack of transparency.

Therefore, more faithful compliance with the Supreme Court guidelines on the part of the executive government is needed to rid ourselves of the tag of the “internet shutdown capital” of the world and fulfil Digital India’s potential.

Reference:

1. https://www.thehindu.com/opinion/op-ed/behind-the-great-indian-internet-shutdown/article36462640.ece