Prakhar Raghuvanshi

Rising instances of internet shutdowns across the country curb legitimate speech and run afoul of constitutional safeguards.

On 9^th January 2020, in Anuradha Bhasin v. Union of India, the Supreme Court of India held the right to freedom of speech and expression, through the internet as a medium, to be an integral part of Article 19(1)(a) but has failed to reach a conclusive result. Due to the increasing number of internet shutdowns, India is becoming the global internet shutdown capital. There were 106 incidents of internet shutdown recorded in India last year. In this article, I aim to discuss the legal provisions related with internet shutdown in India; the rules which are being used by the government to give effect to these shutdowns; how these provisions are in contravention of inter alia right to freedom of speech and expression and a need for immediate guidelines to be issued in this regard.

Legal Provisions

There are primarily two laws in place which are being used by the government to temporarily suspend internet, viz, Section 144 of the Code of Criminal Procedure, 1973 [hereinafter “CrPC”] and Section 5 of the Indian Telegraph Act, 1885 [hereinafter “the Act”] read with Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 [hereinafter “the Rules, 2017”].

Section 144 grants power to issue an order to direct any person to abstain from a certain act or to take certain order concerning certain property in his possession or under his management, in urgent cases of apprehended danger capable of causing nuisance. The power lies with ‘District Magistrate, sub-divisional magistrate or Executive magistrate’ on being satisfied with a ‘sufficient cause’ or that speedy remedy/prevention is ‘desirable’. It is pertinent to note that such orders can be passed to prevent annoyance, obstruction, danger to human life, health or safety, or a disturbance of the public tranquillity, etc.

Apart from this, Section 5 of the Act authorises the government to prevent transmission of any telegraphic message if it is satisfied that such prevention is necessary in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, provided it is done in the interest of public safety or due to occurrence of public emergency. In exercise of this power, the government brought the Rules, 2017. Terms such as public safety and public emergency have not been clearly defined and thus are hit by vagueness.

At the outset, in my opinion, there are two fundamental problems with respect to the laws in place regarding internet shutdown, viz:

• The Rules, 2017 grant the ‘competent authority’ to order for suspension, which in unavoidable circumstances can be an officer not below the rank of joint secretary to the Government of India. Such a rule has an overriding effect. An order for suspension of telecom services can be issued under these rules only and by the competent authority only. Therefore, the suspension of telecom services under Section 144 of the CrPC becomes defunct.
• Assuming orders under Section 144 of the CrPC are allowed, there is a need to redefine such laws. The Rules, 2017 mandate that suspension of telecom services cannot be by an office below the rank of Joint Secretary to the Government of India, whereas orders under Section 144 can be issued even by an executive magistrate. The legislature must consider the conflict of laws and the power given to the officers must be balanced with their ranks.

Constitutional Issues

Apart from the apparent flaws in the present legal construct, the arbitrary orders of internet shutdown are hit by vires of constitutionality. In the following paragraphs, I aim to give an insight about how these orders a) have no legitimate nexus; and b) are unreasonable.

• Absence of legitimate nexus

Encroachment upon a person’s basic and political liberty can be allowed only if it has a nexus with the apprehended danger. Mere apprehension of danger is not enough, there has to be clear and present danger based on credible evidence which indicates that the movement/action of the person in question (whose rights are being curtailed) is dangerous or fraught with violence. This is widely known as the clear and present danger test, formulated by the Supreme Court of the United States. It has been held in S. Rangarajan v. P. Jagjivan Ram (Paragraph 45) –

“The anticipated danger should not be remote, conjectural or far-fetched. It should have with the expression. The expression of thought should be intrinsically dangerous proximate and direct nexus to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a power key.”

(emphasis supplied)

If this test is disregarded while curtailing speech it will have a pernicious tendency to prevent the general public from asserting their opinion which would eventually cast a chilling effect on legitimate speech. It is a well-settled doctrine that any law should not be used in such a manner that it has a chilling effect on freedom of speech and expression. However, when we consider recent internet shutdowns one can prima facie state whether there was any apprehended danger or not. For instance, a straight six-day internet shutdown was ordered in Uttar Pradesh, which was followed by shutdowns for a couple of days in selected districts. Telecom services were suspended in Karnataka for two days on 19^th December 2019 and the list goes on. Indeed, preventive measures are necessary for any nation but the thin line of distinction between prevention and curbing rights must be differentiated.

In arguendo, the US courts shifted to what is referred to as real and imminent danger test in Brandenburg v. Ohio which guarantees stronger protection. The constitution guarantees free speech and free press which mandates the State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action. India adopted the clear and present danger test from the US. If the test is replaced in that jurisdiction itself to guarantee stronger protection to legitimate speech why should India continue to use the old test? It’s high time to shift to real and imminent danger.

• Unreasonable restrictions

The test of proportionality with respect to free speech is explained by the Supreme Court in Hanif Qureshi v. State of Bihar, where the court reiterates that it must be shown that no lesser restriction would have been effective. To pass the test of proportionality i) the law must be content-neutral; ii) availability of lesser restrictive means and iii) nature of affected speech. Firstly, whether the provisions used for suspension of the internet are content-neutral or not can be answered by the mere fact of the vagueness present in the laws. Secondly, the availability of lesser restrictive means is a matter of applicability. In the present scenario, there were lesser restrictive means available which includes internet ban for a few hours rather than days. Lastly, considering the nature of speech in question, the recent incidents revolved around legitimate dissenting voices of people. The internet shutdown not only affects the speech of a particular kind, but it also casts a blanket ban i.e. it’s a gag order.

In addition to this, the Rules, 2017 do not pass the substantive scrutiny of due process. Due process can be read with freedom of speech and expression through the doctrine of incorporation, which is nothing but the incorporation of unenumerated fundamental rights (See Gitlow v. New York). In my opinion, incorporating free speech under the right to liberty would bring free speech under the scrutiny of Article 21 as well. Consequently, the touchstone for determining the validity of legislation or say a notification suspending internet would be much higher than what is accepted in India presently.

In this regard, Rule 2(2) of the Rules, 2017 provides that an order for suspension of telecom services shall be forwarded to the reviewing committee within 24 hours and the committee shall meet within five working days (Rule 6). By providing such a wide timeline for notice and review of the suspension, the state indirectly restricts legitimate speech.

Conclusion

Thus for the reasons stated it is my humble opinion that Section 144 of CrPC should/could not be used for suspension of telecom services and the Rule, 2017 must be reframed considering the constitutional safeguards. If the power in the hands of any government is left unchecked in the 21^st century, it won’t be long before we witness digital dictators. There is an urgent need for guidelines with respect to internet shutdowns as to when can government issue an order for suspension of telecom services, in how many days a reviewing committee should take a decision on it, how long such an order can stay operative before it is required to be re-promulgated and most importantly on whose direction it can be issued. The Supreme Court had an opportunity to do the same in the Anuradha Bhasin case, but it chose to remain silent. I propose the following points –

• Last resort – internet shutdown should be the last resort for maintaining law and order. A blanket ban on the internet would do more harm than good during the time of unrest. Internet shutdown leads to deprivation of information, thereby encouraging fake news which in turn can lead to unrest. In addition to that, considering the very nature of the internet, a blanket ban on the internet is against the ethos of the constitution.
• Defining terms – The Rules, 2017 need a relook and the terms used in the rules, as well as the Act, must be defined taking into consideration the Indian jurisprudence as well as other jurisdictions.

The author is a student at NLU, Jodhpur.

Image Source – AP