On August 5, 2019, the government of India revoked the special status granted under Article 370 of the Indian constitution to Jammu and Kashmir. A day before, a communication blockade that cut off the entire state’s internet, landline, mobile and SMS communication as a preventive measure was imposed.
On Saturday, after 158 days, the Supreme Court of India called the internet a fundamental right.
It made some interesting observations but didn’t provide any immediate relief on the continuing mobile internet ban, leaving it to the executive to review all orders within a week. As I write this, mobile internet still remains unavailable to roughly 8 million inhabitants of this state.
In December, 2019 countrywide protests opposing the passage of the Citizenship Amendment Act, 2019 (CAA) started paving the way for a number of shutdowns in several states including Assam, Uttar Pradesh, Haryana, Telangana, Madhya Pradesh, Arunachal Pradesh, Assam, Tripura, Meghalaya and even the national capital, New Delhi.
Rules for such suspension of internet services exist under the Information Technology Act and Indian Telegraph Act. These are rarely followed owing to their “cumbersome” periodic reviews and due process of some degree. Even when orders are issued under these Rules, they are often in clear violation of the procedures prescribed therein.
Most of these orders are issued by the State Police or District Magistrate under Section 144 of the Code of Criminal Procedure, 1973 (CrPC). If you have followed any protest, you may have come across this section.
This section resides as the sole occupant under the chapter of “temporary measures to maintain public tranquility” and gives state governments the power to issue orders for immediate remedy in urgent cases of nuisance or apprehended danger. Per the law laid down by the Supreme Court, the power under Section 144 of the CrPC is to be used with caution and only when there is “an actual and prominent threat endangering public order and tranquility”.
It should neither be arbitrary, nor subvert the rights protected by the Constitution.
But the frequency with which such orders are issued, one would think the law is relegated to being a “suggestion” instead of law.
The Supreme Court made some important observations on the use of this provision in a judgment it delivered on Friday and opined:
“The power under Section 144, Cr.P.C. cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights” but only practical experience on the ground will tell if these words will translate into real action.
New Delhi based legal services organisation, SFLC.in – which I founded and served until 2017 – maintains a real-time map of ongoing internet shutdowns in India at https://internetshutdowns.in/ along with resources for people to report shutdowns affecting them and information on the legalities and economic effects of these shutdowns.
Per the tracker, India recorded at least 381 instances of complete network disruption in one or more areas between 2012-2020. These unusually high numbers have turned India into the shutdown capital of the world, highlighting that these negative expressions of digital sovereignty are not just for undemocratic societies any more.
There is no easy way of capturing the human cost of these shutdowns. All we have are crowd sourced stories, videos, messages and anecdotes sent by the affected parties through archaic means.
In Kashmir, a Whatsapp group titled ‘Save Heart Kashmir’ has been inactive owing to the five months long shutdown. Started in 20017, with now over 1000 doctors, the group had become an essential place for doctors to exchange patient reports, offer advice and exchange information on medical resources.
On Thursday, Jammu and Kashmir State Board of School Education declared the results for Class 10 examination but students from the state were not able to access them due to the internet shutdown. For anyone who has appeared in those dreadful exams, you can imagine the anxiety of those students. A group of students have been forced to establish a volunteer helpline wherein students check results online in a connected area and inform students about their fate.
Women have been sending in videos on how even a temporary suspension of access to internet makes them feel unsafe as they aren’t able to connect with family, inform about their whereabouts, bank online or call cabs conveniently, a service they have come to depend upon. Stories about loss of livelihood for small businesses who rely on messaging apps to receive and deliver orders are piling up at an alarming rate.
Cut and dry numbers don’t humanise these losses but we can say, using data collected by several parties around the world, that just between 2014 and the end of 2015, internet shutdowns cost Indian businesses almost $1 billion when the number of recorded shutdowns was merely 14 and 31 respectively in contrast to the three digit figured that we have for the years 2018 and 2019.
A recent investigative report by Top10Vpn estimates that full economic impact of internet shutdowns in India is around $1.3 billion or higher.
Digital India is now a reality. The advancements in technologies have ensured that family life, human relations, personal and professional lives are dependent on the availability of digital communications.
Losing internet access is more than just losing ability to stream your favorite movie or playing a video game. It now means livelihood for small businessmen and women, online banking, women safety, access to taxi-service, food, education and almost every other aspect of a modern life.
But living in Digital India seems less of blessing than a curse as government seems capable of bringing everyone’s lives to a standstill with one order.
Governments have this mistaken idea that the way to shut down the internet generation is to shut down the internet. The government of India cannot push for Digital India on one hand and use the kill switch to turn it off with the other. How we cope with this issue will have much to say about whether Digital India is a democratic India or not.
Mishi Choudhary is a technology lawyer with practice in New York and New Delhi. She is the founder of the New Delhi based technology policy focused legal organisation, SFLC.in that maintains India’s only real time tracker on internet shutdowns.