More “preventive” than “reactive” internet shutdowns in India: SFLC report

More “preventive” than “reactive” internet shutdowns in India: SFLC report

The Software Freedom Law Center (SFLC) published a report, “Internet Shutdowns in 2022,” on December 23. At first glance, one can say that the number of internet shutdowns in India has dropped from 110 in 2021 to 75 in 2022, and the duration of most of these shutdowns was less than 72 hours.

However, Indian states could have seen even fewer internet shutdowns this year, if only the state had not resorted to shutdowns as a precautionary measure for every anticipated threat. The SFLC report highlights that since 2019, there has been an increase in the number of proactive internet shutdowns compared to reactive shutdowns in India.

The report defines preemptive shutdowns as those ordered in “anticipation of an event that could cause a situation in which the government feels the Internet should be shut down. For example, in anticipation of communal violence”.

Whereas a reactive shutdown is enforced in response to an “unpleasant event” that has already occurred and the government resorts to such shutdown to combat the conflict. For example, in a post-riot situation, an internet shutdown may be ordered to prevent rumors or misinformation.

According to SFLC’s report, more than 90 preventive shutdowns were ordered in 2021, compared to about 60 in 2022. In 2019 and 2020, the number of preventive shutdowns stood between 80 and 90. Between 2012 and 2018, the number of proactive shutdowns slightly outnumbered reactive shutdowns in three cases—2012, 2014, and 2017. Post-2014 trends suggest that the government has aggressively resorted to proactive Internet shutdowns in recent years, most of which have included reasons related to security, political and communal tensions.

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Reasons for the internet shutdown

Jammu and Kashmir, Rajasthan and Bihar saw the majority of total internet shutdowns in 2022 with 43, 14 and 12 cases respectively. Of the total 75 closures, SFLC’s analysis shows that 41 were ordered under the reason “terrorists”, 24 for “communal tension” cases, four included cases of “cheating in examination”, and six related to “protests/political tension” “.

Why does it matter?

Indian state governments are increasingly imposing internet shutdowns for reasons ranging from law and order situations to preventing cheating in exams. India recorded the highest number of internet outages in the world in 2021, at a time when the government rolled out various health and welfare schemes to tackle the impact of the pandemic. SFLC’s report provides an important assessment of the times when the state has violated the citizen’s right to access the Internet and the legality of such suspensions.

What does the law say?

The report points out that section 144 of the Criminal Procedure Code allows district magistrates to issue an internet suspension order on grounds that include “requirement for immediate prevention” as one of the cases. The order must be in writing and must state the essential circumstances under which the power is invoked.

The Supreme Court of India in the case of Anuradha Bhasin vs Union of India observed that “in a situation where the fundamental rights of the citizens are curtailed, the same cannot be done by an arbitrary exercise of power; rather, it should be based on objective facts. The preventive/remedial measures in terms of Section 144, Cr.PC must be based on the type of emergency, extent of territoriality, nature of restriction and its duration.”

Further, the Temporary Suspension of Telecommunication Services (Public Emergency or Public Safety) Rules, 2017 enables the government to issue an internet suspension order in cases of “public emergency” and “public safety”.

The Anuradha Bhasin judgment also stated that “it is necessary to reiterate that the complete broad suspension of telecommunication services, whether Internet or otherwise, is a drastic measure, to be considered by the State only if it is ‘necessary’ and ‘ is inevitable’.

However, SFLC’s analysis shows that such procedures laid down for internet suspensions and the required test for proportionality and reasoning were not followed by state governments in several cases. For example, internet shutdowns were introduced in Rajasthan to prevent cheating in exams three times a month, despite the Rajasthan HC banning internet shutdowns for cheating in exams. In 2022, West Bengal and Assam also imposed internet shutdowns to prevent cheating on various occasions.

Further, according to SFLC’s report, state governments have claimed exemptions under various sections of the Right to Information Act, when requesting information about the suspension orders and review committees formed by the government to assess the suspension orders. SFLC observes that “such blanket exemptions lead to violation of principles of natural justice”. Access to the Internet is a fundamental right as observed by the Supreme Court, the report said, and “non-publication of these orders and the refusal to provide them under the RTI Act is a violation of the principle of natural justice “.

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