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J&K saw most internet shutdowns in 2022; “preventive shutdowns” on rise in India: SFLC

The Software Freedom Law Centre (SFLC), in its report, analyses the internet shutdown trends in India and the legality of such suspensions.

The Software Freedom Law Centre (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 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 witnessed even fewer internet shutdowns this year, if only the State hadn’t resorted to shutdowns as a go-to precautionary measure for every anticipated threat. The SFLC report highlights that there has been a rise in the number of preventive internet shutdowns as compared to reactive shutdowns in India since 2019.

The report defines preventive shutdowns as those ordered in “anticipation of an event which may trigger a situation in which the government feels that the internet should be shut down. For example, in anticipation of communal violence”.

Whereas, a reactive shutdown is imposed in response to an “unsavoury event” which has already occurred and the government resorts to such shutdowns in order to curb the conflict. For example, in a post-riot situation, an internet shutdown may be ordered to prevent rumours or misinformation.

According to SFLC’s report, more than 90 preventive shutdowns were ordered in 2021 as compared to around 60 in 2022. In 2019 and 2020, the number of preventive shutdowns stood in the range of 80-90. Between 2012 and 2018, the number of preventive shutdowns were slightly more than reactive shutdowns in three cases—2012, 2014 and 2017. Post-2014 trends infer that the government has been aggressively resorting to preventive internet shutdowns in recent years, most of which included reasons relating to security, political, and communal tensions.

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Reasons for the internet shutdown

Jammu and Kashmir, Rajasthan and Bihar witnessed the majority of the total internet shutdowns in 2022 with 43, 14 and 12 instances respectively. Of the total 75 shutdowns, SFLC’s analysis shows that 41 were ordered under the reason “terrorist”, 24 for “communal tension” cases, four included cases of “cheating in exam”, 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 shutdowns in the world in 2021, at a time when the government was spearheading multiple 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 infringed upon the citizen’s right to access the internet and the legality of such suspensions.

What does the law say?

The report notes that section 144 of the Criminal Procedure Code enables district magistrates to issue an internet suspension order on grounds which include “requirement for immediate prevention” as one of the cases. The order has to be in written form and must state material circumstances due to which the power is being invoked.

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The Supreme Court of India in the matter Anuradha Bhasin Vs Union of India had observed that “in a situation where the fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same.”

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 necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’.”

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

Moreover, according to SFLC’s report, state governments have claimed exemptions under various sections of the Right to Information Act, when requested for information on the suspension orders and review committees formed by the government to assess the suspension orders. SFLC notes 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 observes, and “non-publication of these orders and the denial to provide them under the RTI Act is a violation of Principle of Natural Justice”.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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