Internet Shutdown under Section 144: Only Alternative?

By Milind Rajratnam and Shivang Yadav

 “Censorship is to art as lynching is to justice.”

– Henry Louis Gates Jr.

INTRODUCTION

The UNHRC has passed a resolution that makes access to the internet a basic human right. Recently in the case of Faheema Shirin R.K. v. State of Kerala, the Kerala High Court has held that the right to access the internet is a part of fundamental right under Article 21 of the Constitution. This view has been upheld by the Supreme Court too.

Despite this, there have been a number of internet shutdowns in various states in the recent past which were imposed by governmental entities on the pretext of preventing the spread of rumours and fake news in order to maintain public peace and tranquillity. Although restricting the internet is not illegal per se, but the statutory backing that is used by the government entities while imposing such bans is a matter of contention in the legal fraternity.

The predominantly riveting fact in most of these cases is that the government has rooted these shutdowns under the ambit of Section 144 of the CrPC, which empowers the District Magistrate or an Executive Magistrate to issue an order in crucial cases of apprehended danger or nuisance against any person. The invocation of this provision for shutting down internet is new, innovative and has been in the trend in recent time as against the time when Section 144 was mainly invoked in order to restrict unlawful assemblies in vulnerable areas.

In most of the cases, the nature of orders given under Section 144 is anticipatory. Although it has been held that Section 144 for internet shutdown can only be used as a last resort,  the government has incessantly used the backing of Section 144 as the primary measure.

In this blog, the authors are going to explore the other alternatives that the government should adopt while imposing a blanket ban on the use of the internet, in order to ensure the checks and balances.

THE GROWING MENACE OF INTERNET SHUTDOWNS

The first Internet Shutdown in India was imposed by the government in the year 2012 in the Kashmir region as a safety measure to tackle the spread of hate messages in the nation. It was not the last shutdown that happened. There has been a considerable increase in the number of shutdowns not only in Kashmir but all over India since then The present data reveal that approximately 382 internet shutdowns have officially been reported where Jammu and Kashmir and Uttar Pradesh stand in first and second place having 180 and 28 shutdowns reported respectively.

Lately, the government has imposed internet shutdowns giving reasons such as National Security, Elections, Protests, and visits by government officials. The shutdowns imposed under National security have had an opposite impact. as it makes the public more insecure by not allowing them access to any news or events happening around. These shutdowns also clash with the fundamental rights of individuals to receive and impart information as guaranteed under Article 19(1)(a) of the Indian Constitution.

The Revocation of Article 370 and passing of Citizenship Amendment Act, led to protests against the government by the public, in which news and information shared via the internet played a major role in spreading awareness about the ones who were affected by the protests. In these protests, the government-imposed Internet shutdown under Section 144 in various parts of India, explaining it as a preventive measure to tackle the spread of rumours and fake news.

LAWS THAT WERE IGNORED

Generalia Specialibus Non-Derogant is a well-settled principle of jurisprudence which means that the provisions of a special law will prevail over the provisions of general law. This principle has been upheld by the SC in Motiram Ghelabhai v. Jagan Nagar.  In the context of the CrPC, the SC in Ram Saran Case has held that, where a special procedure is prescribed by a special law, then that special law must prevail over the provisions of this CrPC.

Information and Technology Act:

In the context of internet shutdown, it is pertinent to note that the Information and Technology Act (hereinafter referred to as IT Act) is a special law dealing with the aspects of online offences, cybersecurity and other internet related regulations. Therefore, in case of a clash between CrPC and the IT Act, the IT Act should prevail and this is also specified by Section 81 of the IT Act which gives overriding effect to the provisions of IT Act.

Section 69A of the IT Act empowers the government to block any information that is generated or transmitted through any computer resource for the reasons that are enlisted in the provision. The SC in the case of Shreya Singhal v. Union of India has upheld the constitutional validity of this section and has specifically mentioned that Internet services can be blocked under this section.

A Combined reading of Section 2(1)(a), 2(1)(v) and 2(1)(k) which defines access, information and computer resource respectively under Section 69A of the Act would imply that the Government is empowered to block the entry or communication of information with another computer resource or network. By virtue of this provision, the government is empowered to disrupt internet services and this provision can also be used in emergency situations which need immediate action.

The procedure under the IT Act includes a lot of checks and balances before imposing any ban on the internet. It includes mechanisms which follow principles of natural justice under the Blocking Access Rules, 2009 and is a more dependable way as compared to Section 144 wherein usually ex-parte orders are passed.

Additionally, under Section 69A there is also a review process of the procedure and directions of the blocking down of internet services by the government if the IT Act has been invoked.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017

These rules were issued under Section 7 of the Indian Telegraph Act, 1885 in the year 2017 as State’s response to the criticisms that they had to witness due to the to internet shutdowns under  Section 144. These rules contain a significant number of checks and balances. Section 5(2) of the Indian Telegraph Act, 1885 empowers the government to block the transmission of messages in cases of public emergency or to ensure public safety.

Earlier the Indian Telegraph Act was intended for the regulation of telegraphs but after the termination of telegraph services in the country and a series of amendments its scope was widened to govern the activities of establishment, maintenance and working of other means of communication.

Some stringent measures were have been adopted by way of the amendments that have been brought forth in the Act. Before these changes were brought forth to Section 144 of CrPC, the District Magistrate or the Sub- District Magistrate had the power to issue internet shutdown orders. However, in the new rules, in case of Central government, only the Secretary to the Government of India in the Ministry of Home Affairs and in case of State Government, only the Secretary to the State Government in-charge of the Home Department has the powers to issue such an internet shutdown.

In case of an extraordinary circumstance, such orders can be issued by an officer who is not below the rank of Joint Secretary to the Government of India and has been authorized to issue such orders. However, in such cases, the orders issued are to be confirmed by a competent authority within a period of 24 hours, lack of which will cease the order.

Another check that these rules instil is the establishment of review committees at the central and state level which are composed of officers of the highest level, including the cabinet secretary and the chief secretary of State who will be the chairperson at Central and State level respectively. These committees will receive the internet shutdown order on the next working day after the issuance of such an order. The function of these committees is to judge the credibility of such order under section 5 of the Indian Telegraph Act, 1885.

CONCLUSION

Although, the main objective of such an internet shutdown is to prevent the demonstrations, protests or situations of riots by putting an end to rumours and fake news that incite public at large. However, such a move on part of the government it can also be seen as the inability of the government to maintain law and order and come up with an easy way out to deal with hostile situations. Since there is a lack of transparency in the procedure  it becomes rather difficult to ascertain whether the decision regarding internet shutdown in that particular situation was necessary or not.

The review provision contained in the IT Act and the Temporary Suspension of Telecom Services Rules, is a better alternative than Section 144, as the former put checks on the unfettered power of the government.

It is pertinent to note that in India, there are both stringent and lenient alternatives available for the government to opt for in cases of such circumstances. If in circumstances like the present the government is keen on using the measures which have fewer checks and balances, a midway needs to be found. The regulations governing internet shutdown should ensure that  the rights of individuals are not compromised and  public peace and tranquillity is maintained

Checks and balances in cases of internet shutdowns are the need of the hour, as blanket protection to internet shutdown may lead to the arbitrary use of power by the government in order to suppress the voice of individuals.

[The co-authors are students at Dr. Ram Manohar Lohiya National Law University, Lucknow.]

Advertisement