Internet Shutdowns: A Constitutional perspective

Liberty and security have always been at odds with each other. The question before us is what do we need more, liberty or security? The pendulum of preference should not swing in an extremity of either of the direction so that one preference does not compromise the other[1]. Free speech has been an experiment from the word ‘go’[2]. With time, the internet too has become an essential tool for democratic participation and earmarked itself as one of the most influential mediums of free speech and expression[3].

The mobile phones which were once a luxury have now become mere means of survival[4]. Under such circumstances, frequent internet shutdowns disrupt the free flow of information and create a void that keeps instances of human rights violations from public scrutiny[5]. Internet bans explicitly violate Article 14, 19 and 21 of the Constitution by being arbitrary and excessive.[6] It prevents our autonomy, denies us our free will, and undermines our freedom[7]

So much so that the United Nations Human Rights Committee has condemned the internet shutdowns as a human rights violation and explicitly stated that “the same human rights that people have offline must be protected online.[8]” Ergo, the internet has attained the status of a fundamental right which cannot be taken away arbitrarily[9] and the blocking powers must stay within the constitutional boundaries[10].

However, at the same time, it is important to note that the liberty of one must not offend the liberty of others. Man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals[11].

Security of state is of vital importance and government must have the power to impose a restriction on the activities affecting it[12]. In toto, it is crucial that a balance has to be maintained between the individual right of freedom and the collective right of public order. Any direction to ban internet should be within the constitutional margins and comply with the test of reasonability and proportionality enshrined within the Constitution.

Internet shutdown vis-à-vis Constitutional freedoms

The Constitution of India is the supreme law of the land and any action by the authorities which is contradictory to the mandate of the Constitution is ultra vires. It is firmly established that the internet is considered as a facet of fundamental right under Article 19(1) (a) having been read into the freedom of speech and expression clause.

It is also a known fact that the internet has taken over our lives and there several businesses which depend solely on efficient internet connectivity. Blanket blockage of the internet without any preliminary measures would, therefore, blatantly affect the citizens right to do business online. Above all, the action of imposing a blanket ban on the internet without consideration is ipso facto arbitrary and comes into conflict with the principle of non-arbitrariness.

But none of these freedoms is absolute or uncontrolled, for each is liable to be curtailed by-laws made by the state[13]. Ergo, when the State has to take swift decisions in emergent situations of apprehended danger, restrictions may be considered reasonable which would not be considered otherwise reasonable[14]. Indeed there has to be a balance between individual rights guaranteed on one hand and the exigencies of the State on the other.

Internet shutdown and Freedom of Speech

There is no dispute that freedom of speech and expression includes the right to disseminate information to a wide section of the population[15]. It constitutes one of the essential foundations of a society[16]. Without freedom of speech, the appeal to the reason which is the basis of democracy cannot be made[17].

The court, in a catena of judgment[18], has recognized the freedom of speech and expression over different mediums of expression including internet[19]. Ergo, the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution can be used by the mode of Internet[20] and the States parties should take all necessary steps to foster the independence of these new media platforms.[21]

Moreover, it is the requisite of the democratic form of government to guarantee its citizens active and intelligent participation in the affairs of the community[22]. By indiscriminately shutting down the internet, the State would subdue dissent which is against the directive of our Constitution. Ergo, the wider range of circulation of information or its greater impact cannot restrict the content nor can it justify its denial[23].

In the last couple of years, there has been a substantial increase in the internet shutdown in various states of India. The severe criticism against the extensive and repeated use of Section 144 of the Code of Criminal Procedure and the Temporary Suspension Rules of 2017 stands testament to the fact that the citizens right to free speech has been under scanner lately.

However, many times this freedom of expression and speech has landed itself in the hands of corrupt people who lure the indigent to indulge in communal tensions. This factor ushers in the necessity to maintain a peaceful balance between the freedom of speech on one hand and the security of the nation on the other.

A speech that may lead to ‘incitement’ can justifiably be curtailed under Article 19(2)[24]. The expression used in Art. 19(2) “in the interest of” gives a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the right guaranteed by Art 19(1)(a)[25] for the maintenance of social order. But any restriction imposed upon freedom of speech should be within the prescribed limits set by the Constitution.

The guaranteed freedom of speech and expression can be restricted if a danger qualifies as an immediate threat as per Article 19(2)[26] and pass the three-pronged cumulative test of transparency, legitimacy and the twin test of necessity and proportionality[27]. In conclusion, the speeches and expressions which encourage violent crimes are related to the security of the State[28] and cannot claim protection under Article 19(1)(a).

Right to freedom of trade, profession and business under Article 19(1)(g):

The Internet is not merely a communication system but is the chosen platform for business and e-commerce. The heavy losses accrued by the business due to this untimely shut down of the internet amount to an infringement of their freedom ‘to practice any profession, or to carry on any occupation, trade or business’ as laid down under Article 19(1)(g) of the Constitution[29].

However, this fundamental right is also not unregulated and cannot be looked in isolation. It can be restricted and regulated by the authority of law in the interests of the general public under Article 19(6)[30] and cannot be said to be unreasonable merely because, in a given case, it operates harshly[31]. Ergo, unless an order imposing restriction is, on its face, absurd or mala fide, the Court should not interfere[32].

Internet shutdown and personal liberty under Article 21

Freedom of expression is integral to the expansion and fulfilment of individual personality[33]. The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life and facilities for reading, writing and expressing oneself in diverse forms[34]. By censoring freedom of expression and information online, the authorities treat adults akin to children[35]. Hence, suppression of online speech, in its more painful consequence, would be the mental sterilization of the community[36]. In that case, the violation of fundamental right under Article 19(1) (a) of the Constitution could also travel into the realm of violation of other fundamental rights like Articles 21 and 14[37].

However, the right that springs from Article 21 is not absolute and unchecked. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder[38]. The fact that the citizens of this country have freedom of speech does not mean that they can exercise those freedoms in whatever place they please[39]. It is also true that any restriction on such right must be according to the procedure established by law and such freedom must be just, fair and reasonable[40].

Accordingly, to restrict the freedom under Article 21, first, there must be a law justifying interference with the person’s life or personal liberty, and secondly, the law should be valid, and thirdly, the procedure laid down by the law should have been strict followed[41]. Therefore, although strict boundaries of “personal liberties” cannot be identified, at the same time, we are mandated to ensure that such liberty accommodates public interest[42].

Internet shutdown and Article 14 guarantees

Every State action, to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law[43]. However, even the broadest guarantee of free speech would not protect the entire gamut of speech. No constitutional right can be claimed to be absolute considering the inter-connectedness of all rights, and accordingly could be restricted[44].

It is common knowledge that social media could be used as a means to incite violence. The internet allows for the transmission of false news or fake images, which might then be used to spread violence. The ‘dark web’ allowed individuals to purchase weapons and illegal substances easily[45]. While newspapers only allowed one-way communication, the internet makes it possible to communicate in both directions, making dissemination of messages very simple[46].

That is why, the societal value of speech must, on occasion, be subordinated to other values and considerations[47]. Restricting this freedom also becomes very necessary sometimes for maintenance and regulation of law and order[48]. Ergo, if the state or its officials anticipate disorder or disturbance to public tranquillity, the authorities are empowered to impose a temporary ban[49] on this right.

The Test of Proportionality and Necessity

Admittedly, fundamental rights may not be absolute, however, they require strong protection, thereby mandating a sensible necessity test as the same will prevent the fundamental right from becoming either absolute or to be diminished[50]. While there can be some restrictions on this right, the least restrictive option must be put in place, and the State should take preventive or protective measures[51]. It is crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest[52].

Complete broad suspension of internet services, is a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’ and that the State must assess the existence of an alternate less intrusive remedy. It is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace. Ergo, notwithstanding the expediency of the situation, the necessity of a measure must be shown by the State.[53]

Conclusion

A common feature across various fundamental rights is the permissibility of State intervention[54]. This interplay between a citizen’s right and the State’s regulation forms the bedrock of constitutional mandate[55]. Therefore, restrictions on fully protected speech are valid if they are “narrowly tailored to serve a compelling state interest”[56]. The irony is that India represents both the world’s largest democracy and the world leader in deploying internet shutdowns as a political tool.

Internet shutdowns harm everyone and allow human right crackdowns to happen in the dark, with impunity[57]. Therefore, the restrictions must be justified on the anvil of necessity and not the quicksand of convenience or expediency[58] and when there is a tussle between two fundamental rights, they must be balanced against each other so that they harmoniously coexist with each other[59].


[1] Aditya A.K., ‘Section 144 cannot be used to prevent the legitimate expression of democratic rights: The Supreme Court’s judgment in the Kashmir restrictions matter’, (Bar and Bench, 10 January 2020) <https://www.barandbench.com/news/section-144-cannot-be-used-to-prevent-legitimate-expression-of-democratic-rights-the-supreme-courts-judgment-in-the-kashmir-restrictions-matter> Accessed on 20/06/2020 at 23:43 HRS. Also in Anirudha Bhasin v. Union of India, 2019 SCC OnLine SC 1731.

[2] Abrams v. the United States, 250 U.S. 616 (1919).

[3] International Telecommunication Union (ITU), World Bank, and United Nations Population Division.

[4] Faheema Shirin R.K. v. the State of Kerela, Writ Petition (Civil) No. 19716 of 2019.

[5]Jonathan Rozen, ‘Journalists under duress: Internet shutdowns in Africa are stifling press freedom’ Published on:17 August 2017. Cited in #KeepitOn: Joint letter on keeping the internet open and secure in Zimbabwe, (Association for Progressive Communications, January 2019( < https://www.apc.org/en/pubs/keepiton-joint-letter-keeping-internet-open-and-secure-zimbabwe> Accessed on 19/06/2020 at 19:43 HRS.

[6] AnirudhaBhasin, Supra Note, 1.

[7] Nirbhay Phusate, ‘Freedom of Expression- Democracy’ (Legal Services India, 2015) <http://www.legalservicesindia.com/article/2307/Freedom-of-expression—Democracy.html> Accessed 9May 2020.

[8] Bansari Kamdar, ‘Democracy in digital darkness-Internet shutdowns, New Indian normal?’ (The Diplomat, 20 December 2019) <https://thediplomat.com/2019/12/democracy-in-digital-darkness-internet-shutdowns-new-indian-normal/> Accessed 8 May 2020.

[9] Faheema Shirin R.K., Supra Note, 4.

[10]Gaurav Sureshbhai Vyas v. State of Gujarat, 2016 SCC OnLine SC 1866.

[11] Dheerejendra Patanjali, Freedom of Speech and Expression India v. America- A study, Indian Law Journal, <https://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html> Accessed on 19/06/2020 at 19:50 HRS. Also in A.K. Gopalan v. State of Madras, AIR 1950 SC27.

[12] Tanu Priya, Freedom of Speech and Expression, (Lawctopus, 2 September 2014), <https://www.lawctopus.com/academike/freedom-of-speech-and-expression/> Accessed on 19/06/2020 at 19:53 HRS.

[13] V. Karthyaeni, Test of Reasonableness under Article 19, (Go for the Law),  <http://www.goforthelaw.com/articles/fromlawstu/article48.htm>Acessed on 19/06/2020, 19:55 HRS.

[14] Ibid.

[15] internet Access a fundamental right: SC, (Outlook India, 10 January 2020), <https://www.outlookindia.com/newsscroll/internet-access-a-fundamental-right-sc/1705281> Accessed on 19/06/2020 at 20:16 HRS. Also in Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[16] Handyside v. the United Kingdom, [1976] ECHR 5.

[17] Jennings, W.I., Cabinet Government, 13. Cited in Dr Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad, 18, (2007). Referred from <https://shodhganga.inflibnet.ac.in/bitstream/10603/36776/11/11_chepter%202.pdf> Accessed on 19/06/2020 at 20:22 HRS.

[18] Indian Express v. Union of India, (1985) 1 SCC 641.

[19] LIC v. Manubhai Shah, (1992) 3 SCC 637.

[20]Gopalji Prasad v. State of Sikkim, 1981 Cri. LJ 60.

[21] UN Human Rights Committee, General Comment No. 34 Article 19: freedoms of opinion and expression, UN Doc. CCPR/C/GC/34, 12 September 2011, <https://www.ohchr.org/EN/NewsEvents/Pages/FreedomExpressionandnewmedia.aspx> Accessed on 19/06/2020 at 20:27 HRS.

[22] S. Rangarajan Etc. v. P. Jagjivan Ram, 1989 SCC (2) 574.

[23] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[24] Ibid.

[25]Basu, D.D., Commentary on the Constitution of India, Vol. 2, 8th Ed., Wadhwa and Co. Law Publishers, New Delhi, 2007.

[26] S. Rangarajan, Supra Note, 22.

[27] Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Human Rights Council, 17th Session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, General Assembly, United Nations, A/HRC/17/27 (16 May 2011) <https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>Accesed on 17/05/2020, 01:48 HRS.

[28]Basu, D.D., Supra Note, 25.

[29]Legality of Internet Shutdowns under Section 144 of CrPC, (Sflc, 2October 2016), < https://sflc.in/legality-internet-shutdowns-under-section-144-crpc> Accessed on 19/06/2020 at 20:32 HRS.

[30] Mohammed Zahoor v. State of Madhya Pradesh and Ors., AIR 2010 MP 22.

[31]Pathumma v. the State of Kerala, AIR 1978 SC 771.

[32] V.G. Deshpande v. City Magistrate Lucknow, 1953 Cr. L.J. 1358.

[33]Nidhi Kulkarni, ‘Freedom of Speech in the Age of Social Media’, (Academia), < https://www.academia.edu/34547358/Freedom_of_Speech_in_the_Age_of_Social_Media_Assignment_01> Accessed on 19/06/2020 at 20:39 HRS.

[34] Riya Jain, ‘Article 21 of the Constitution of India – Right to Life and Personal Liberty’, (Lawctopus, 13 November 2015), < https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/#:~:text=%E2%80%9CThe%20right%20to%20live%20includes,and%20mixing%20and%20mingling%20with> Accessed on 20/06/2020 at 00:35 HRS. Also in Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.

[35] Nirbhay Phusate, Supra Note, 7.

[36] Ernest William Hocking, “Freedom of the Press: A Framework of Principle”, (A Report from the Commission on Freedom of the Press, 88-89, 1947), Cited in Dr Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 19 (Asia Law House, Hyderabad (2007).

[37]Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[38] State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92. Cited in ‘Section 144 must pass the test of reason’, (Telegraph India, 20 December 2019), < https://www.telegraphindia.com/india/section-144-must-pass-test-of-reason/cid/1728732> Accessed on 19/06/2020 at 20:45 HRS.

[39] Railway Board v. Narinjan Singh, (1969) 3 SCR 548. Cited in ‘Legality Of Shaheen Bagh Protests: Do’s And Dont’s Of Holding A Protest In India’, (Law Street Journal, 24 February 2020), < https://lawstreet.co/speak-legal/legality-of-shaheen-bagh-protests/> Accessed on 19/06/2020 at 20:49 HRS.

[40]Maneka Gandhi, Supra Note, 37.

[41]Shah Kalidas Madhavlal Jain v. B.L. Thakore, (1991) 1 GLR 634.

[42]s china Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

[43] Ravi Kant, ‘Arbitrary actions of the State conflict with Article 14 (Right to Equality) of the Constitution of India, (Law Reports, 12 June 2009), < https://lawreports.wordpress.com/2009/06/12/arbitrary-actions-of-the-state-are-in-conflict-with-article-14-right-to-equality-of-the-constitution-of-india/> Accessed on 19/06/2020 at 20:54 HRS.

[44]AnirudhaBhasin, Supra Note, 1.

[45] Ibid.

[46]Abrams v. the United States, 250 U.S. 616 (1919).

[47]Dennis v. the United States,341 US 494 (1951).

[48] Gaurav Sureshbhai, Supra Note, 10.

[49]Anirudha Bhasin, Supra Note, 1.

[50] Ibid.

[51]Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.

[52] CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459, Para 89.

[53] Anirudha Bhasin, Supra Note, 1.

[54] Kanu Agarwal, ‘Legitimate and Compelling State Interest: The Test of for Aadhaar’, (Bar and Bench, 31 August 2017), < https://www.barandbench.com/columns/legitimate-state-interest-test-aadhaar> Accessed on 20/06/2020 at 00:35 HRS.

[55] Anirudha Bhasin, Supra Note, 1.

[56] Burson v. Freeman, 504 U.S. 191, 198 (1992).

[57] U.N. passes landmark resolution condemning Internet bans, (Access Now, 1 July 2016), <https://www.accessnow.org/un-passes-resolution-condemning-internet-shutdowns/> Accessed on 20/06/2020 at 01:04 HRS.

[58] S. Rengarajan, Supra Note, 22.

[59] Anirudha Bhasin, Supra Note, 1.

Nimrah Ali from School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai

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