A step closer to realising internet freedoms in India: Supreme Court rules indefinite internet shutdowns are unconstitutional

 

Publication date: 
January 2020
Author: 
APC

The Association for Progressive Communications (APC) welcomes the judgment of the Supreme Court of India, which held that the indefinite imposition of internet shutdowns is unconstitutional. In its judgement on 10 January 2020, the Court directed the government to review all orders relating to internet shutdowns within one week. The Court also directed the government to put in the public domain all orders of internet shutdowns, including the material facts forming the basis upon which such orders were passed.

The Court further declared that the rights to freedom of speech and expression and to practice any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and Article 19(1)(g) of the Constitution of India. The Supreme Court recorded this decision in a case challenging the ongoing internet shutdowns and restrictions placed under section 144 of the Code of Criminal Procedure (which prohibits assembly of three or more people) in Kashmir.

APC urges the government of India to eradicate its practice of imposing internet shutdowns. We encourage the government to immediately implement the order of the Supreme Court and take seriously the observations of the Court in relation to the impact of internet shutdowns on fundamental rights. We urge the Review Committee that will be revisiting all orders of internet shutdowns to adopt a rights-based perspective with a view to upholding the fundamental rights of Kashmiris and all Indians, and call on the government of India to recognise and realise access to the internet as a human and fundamental right.

Five months and counting: “The longest internet shutdown in the history of any democracy”

On 5 August 2019, the government of India imposed a total communications ban in Kashmir. Since then the people of Kashmir have been living in virtual darkness. While landlines and post-paid mobile phone voice calls were eventually restored, and messaging on post-paid mobile phones was allowed after 149 days, pre-paid mobile phone calls and messaging services continue to be restricted for over three million users. Critically, access to the internet has been completely prohibited and remains banned to this day. This has been regarded as the longest internet shutdown in the history of any democracy. This decision was part of the government’s move to revoke Article 370 of the Constitution of India, which provided significant autonomy to the state of Jammu and Kashmir, and to bring the region under the control of the central government through the passing of the Jammu and Kashmir Reorganisation Act 2019.

In a joint statement, the UN Special Rapporteurs on freedom of opinion and expression, human rights defenders, peaceful assembly and association, and extrajudicial, summary or arbitrary executions, together with the Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances, called the near total communications blackout “a form of collective punishment of the people of Jammu and Kashmir, without even a pretext of a precipitating offence.”

This internet shutdown in the region has had a damaging impact on a number of fundamental rights, including the right to freedom of expression. It has affected access to necessary health care and emergency services, with many in the region unable to contact ambulances and fire services when needed, resulting in loss of life and property and psychological distress. While internet service was restored to government hospitals on 31 December, more than 1,000 private hospitals and medical facilities remain without access to the internet, severely affecting treatment and access to medicines for patients. Essential services including internet banking have been curtailed, and the local economy has suffered severe losses, forcing a mass exodus of people from the region in search of jobs. Freedom of the press has also been restricted, with little to no news emerging from the region over the past five months. At the same time, the people of the region have been isolated, with no way to communicate with family and friends outside the state.

An epidemic of shutdowns in India is bleeding the economy

According to Internetshutdowns.in (a project of the Software Freedom Law Centre, India), since 2012 there have been 381 instances of internet shutdowns in India. Of the 381 internet shutdowns recorded between January 2012 and 4 January 2020, 236 were observed to be preventive, i.e. restrictions imposed in anticipation of a “law and order situation”, and 146 shutdowns were reactive in nature, i.e. imposed in order to contain ongoing law and order breakdowns. There have also been instances where the state has imposed shutdowns to prevent copying during examinations. These internet shutdowns have largely been imposed under section 144 of the Code of Criminal Procedure with no accountability or legal oversight.

In 2019, following the protests that erupted against the controversial Citizenship Amendment Act, the government has enforced varying degrees of internet shutdowns in nine states in the country, which continue to this day.

Reports have estimated a loss of USD 8 billion in 2019 alone as a result of government-led internet shutdowns globally. A study has estimated that the internet shutdowns between 2012 and 2017 had cost the Indian economy over USD 3 billion and an additional USD 1.3 billion in 2019.

Significantly, it must be noted that 122 major shutdowns took place in 21 countries during 2019 and 106 shutdowns in India alone, essentially making India the leading country for imposition of network shutdowns.

Governments must eradicate shutdowns

APC has repeatedly held that the internet is essential to the exercise of freedom of expression, assembly and association, both online and offline. Network shutdowns indiscriminately restrict the exercise of these rights and hinder the realisation of economic, social and cultural rights, including the right to health, education and livelihoods. They also raise concerns for people’s safety by reducing the ability of emergency services to communicate and locate people and undermining the ability of the authorities to disseminate important information to move people to safety. Shutdowns also severely impact the work of media, preventing media workers from being able to carry out reporting and dissemination of information during critical times.

The UN Human Rights Council has unequivocally condemned intentional measures to prevent or disrupt access to or dissemination of information online, in violation of international human rights law, and called on states to cease this practice. Multiple UN Special Rapporteurs have pronounced internet shutdowns as unjustifiable and in violation of international law.

APC continues to urge the government of India, and other governments, to end the practice of imposing internet shutdowns. It is especially critical that stable communications infrastructure be maintained during times of conflict and at key democratic moments such as elections and assemblies.

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