Updated: Mar 29, 2021
Author: Sehaj Sarin
The Law School, Jammu University
ABSTRACT When it comes to curbing dissent and freedom of expression, some governments take the drastic step of shutting down the internet. Deliberate slow down of the internet speed and internet shutdowns are becoming more common with time. The internet shutdowns, mostly occur when someone, usually a government disrupts the internet intentionally to control what people say or do on it. As it is done to control the expressions of the people, it results in the violation of Article 19(1) of the Constitution of India. Article 19 of the Indian Constitution basically talks about six freedoms that are available to all the citizens of India, and Article 19(1) comprises of the freedom of speech and expression. It means that everyone has the right to express one’s own opinion freely. INTRODUCTION “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” - John Milton The ability to think and speak freely is the essence of free speech. People of the country have the right to speak freely and also, to obtain information from others by the mode of publications and public discourse, without having the fear of repression or any restriction by the government. The first condition of liberty is the freedom of speech. Freedom of Speech is the mother of all liberties, it occupies a very important and preferred position in the hierarchy of liberty. Freedom of Speech is the right to express one’s own opinions and convictions freely, either by writing, printing, speaking, pictures or any other mode. The right to freedom of speech and expression holds a significant position in the society, it is the essence of a free society and it must be safeguarded at all times. The liberty to express our opinions, our ideas, without any hindrance and any fear of punishment, is really important for the development of the society. Basically, an untrammeled flow of words in an open forum is considered to be the first principle of a free society.
The freedom of speech is guaranteed not only by the Constitution of India, but also by various international conventions such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, European Convention on Human Rights, etc. These are some of the declarations which talk about the importance and protection of freedom of speech and expression. INTERNET SHUTDOWNS – MEANING AND INSTANCES Internet shutdowns, as the name suggests is the disruption of access to the internet by imposing restrictions by the government of a country. It is sometimes called as the ‘Digital Curfew’ or ‘Internet Kill Switch’. As we know, the world depends heavily on internet in today’s times; from booking cabs and tickets online, working from home, video calling our friends and family - to expressing our opinions on twitter, ordering grocery for our home and everything. Despite this, internet shutdowns are restored by the government in the name of maintaining law and order. But the most dreadful thing is that the world’s largest democracy - India is at the top on the list with approximately 134 instances of internet shutdowns in 2018 and 103 such instances in 2019, which is the highest number of internet shutdowns globally.[i] The instances of internet shutdown are rampant in India, as it has become the favourite tool of the government to curb any kind of apprehended or real danger. The most recent one was in Delhi on 19/12/2019 which was due to the rise in number of Anti - CAA protests. Earlier in 2017, internet and mobile services were suspended in Haryana and Punjab to prevent the rumors which were spreading during the trial of Dera Sacha Sauda and its Chief Gurmeet Ram Rahim Singh. The internet was shut down in Jammu and Kashmir in 2019 due to apprehensions of threat to the security of the people of Jammu and Kashmir, in the wake of the abrogation of Article-370 by the government of India. Not only this, in 2018 the internet was shut down in Rajasthan merely to restrict cheating in the State Services examination. INTERNET SHUTDOWNS AND FUNDAMENTAL RIGHTS VIOLATION
Article 19(1) of the Constitution of India provides the right to freedom of speech and expression. Article 19 of Universal Declaration of Human Rights provides the freedom of speech and expression. It is, however, undisputed that no right is absolute and reasonable restrictions can be imposed by the government on these rights in the interest of the State, security reasons, etc. Article 34 of the Constitution of International Telecommunication Union (ITU), sanctions the stoppage of telecommunication by giving the right to the member countries to block or cut off the service of telecommunication on certain grounds. Article 19(2) of the Constitution of India provides that reasonable restrictions can be imposed on the grounds of security of state, in the interest of integrity and sovereignty of India, etc. However, Freedom of Press is inherent in Article 19(1)(a) of the Constitution. Imposition of digital curfews results in the violation of freedom of press to a substantial extent. The shutdown of internet in Jammu and Kashmir in August 2019, had a crippling and debilitating effect on news-gathering, publication and information dissemination. The arbitrary shutting down of the internet threatens the livelihood of all the people who are engaged in online delivery services and also results in obstruction in working of e-services. Thus, there is no question of whether the government has the right to suspend or censor internet services but the question is as to what extent the government can resort to this measure, to maintain balance between security and liberty. Thus, the order to shut down the internet should be reasonable and fair. RIGHT TO ACCESS INTERNET IN INDIA As the whole world depends on internet, it is a necessary tool for communication. The first country which declared access to the internet as a legal right is Finland. However, it is not a fundamental right in India till now. The Kerala High Court in Faheema Shirin R.K. v. State of Kerala and Ors., heldthat the right to access the internet is a part of fundamental rights which cannot be taken away arbitrarily.[ii]
The Supreme Court has also in Shreya Singhal v. Union of India while striking down Section 66A of the Information Technology Act, 2000 recognised that the citizens have a right to exercise free speech and expression online.[iii]
From time to time, the governments have adopted the harsh tool of Internet shutdown to deal with certain issues like security of the state, etc. On one hand, the use of this extra ordinary measure is justified as the internet shutdown in 2016 in Kashmir was due to the protest after the death of Burham Wani, who was a proclaimed terrorist. But, internet shutdown for the purpose of introducing new laws or to prevent cheating is an instance of digital authoritarianism and can be considered as an anti-thesis of democracy. India is the largest democracy in the whole world and every individual in a democracy has an indisputable right to discuss the events happening everyday, which also includes burning topics of the day. Also, we cannot ignore the fact that internet shutdown brings a huge economic loss with it. A study conducted by ICRIER (Indian Council for Research on International Economic Relations) on shutdowns in India stated that from 2012 to 2017, 16315 shutdown hours cost country’s economy approximately
$ 3.04 billion.[iv]
The nature of law is dynamic and it changes with the change in the society. Thus, the law must be developed further with the development in technology.