By Sowmya Karun
At the time of posting, mobile internet services continue to remain suspended in parts of Jammu & Kashmir for the sixth consecutive day. The shutdown was enforced in response to the tense law and order situation prevailing in the Kashmir valley following the death of Burhan Wani, a top commander in the terrorist outfit Hizbul Mujahideen.
This shutdown, already the fourteenth this year in India, comes on the heels of the adoption of a resolution by the UN Human Rights Council (UNHRC) on the “promotion, protection and enjoyment of human rights on the internet”. Although the resolution stops short of recognizing access to the internet as a human right, it affirms that human rights exercised offline should also be protected online. The UN HRC had previously resolved to protect human rights online in its 2012 and 2014 sessions, but this resolution marks a significant improvement as it specifically comments on the hitherto unaddressed issue of internet shutdowns. It condemns measures that “disrupt access to or dissemination of information online, in violation of international human rights law” and calls on states to refrain from such measures. The resolution is timely as it comes at a juncture when governments worldwide are, at an increasing frequency, adopting various strategies to shut down the internet. The internet has been shut down by governments to counter problems ranging from civil unrest or uprisings such as in Zimbabwe most recently and even to prevent cheating in exams such as in Gujarat earlier this year.
Contrary to media reports that India had voted against the resolution, India voted in favour of three amendments to the resolution mooted by Russia and China. While commentators have been divided on whether on these amendments are antithetical to the spirit of the resolution, India did vote on an amendment to weaken the emphasis on the “human rights-based approach” conceived of originally in the resolution. The cruel irony of this is amplified in the context of the questionable human rights record of the armed forces and the police in Jammu and Kashmir- which has experienced the highest number of shutdowns in the country.
In our previous posts, we had argued that the implementation of shutdowns under Section 144 of the Code of Criminal Procedure, 1973 suffered from fatal over-breadth and was constitutionally unviable. In practical terms, the hazards of implementing a widespread internet shutdown simply cannot be understated. The suspension of the internet, especially in situations of riot or violence, becomes especially problematic for citizens. As reported in Jammu and Kashmir, the lack of reliable information through communication channels has contributed to the perpetration of rumours and the worsening of the situation in many parts of the valley. The communication breakdown has adversely affected the provision of much-needed health and emergency services in addition to disrupting trade and commerce significantly. The collateral damage of internet shutdowns becomes especially relevant when considered against the prism of the Government’s stated mission in endorsing programs like Digital India and the Smart Cities mission which will rely substantially on the internet for smooth functioning and delivery of services. With the mechanics of everyday life being increasing intertwined in the internet, it is essential to ask the question whether the internet should be shut down without procedural transparency.
As previously stated, India is not alone in implementing internet and communication network shutdowns of this nature. Not surprisingly, even in jurisdictions with a strong tradition of respect for free speech, executive procedures relating to shutting down the internet and other communication services at the government’s instance remain shrouded in secrecy. In the US, for instance, a policy known as the Standard Operating Procedure 303 allows for the shutdown of cell-phone services anywhere in the country in the event of a crisis situation. As in India, on account of the lack of transparency and accountability, activists fear that the power may be abused. A petition that sought more information on the protocol was declined by the Supreme Court of the United States. In the UK too, a localized mobile network shutdown implemented by the City of London Police following the terrorist bombings in London came in for heavy criticism, having affected over a million individuals’ communications. A review committee found that the protocol needed to be reviewed and restructured to provide for adequate and effective procedures to follow.
Additionally, the conversation on internet shutdowns is also increasingly focused on the prospect of shutting down the internet in the event of a cyber attack. In the UK, for instance, specific legislations enable Government ordered suspension of the internet to bring about “web Armageddon”. In India, the debates and discourse around internet shutdown are nascent yet- but will only acquire increasing significance. The Government is in the process of considering amendments to the Information Technology Act, 2000 to ramp up cyber security provisions. As we progress toward systems that are completely digitized, the likelihood of cyber-attacks will only increase- which then begs the question of whether the Government can choose to shut down the internet and what procedures it is bound by in doing so.
The internet is a great enabler of democracy – having greatly lowered the hurdles to free speech and assembly. Any attempts at shutting down the internet must necessarily be accompanied by structured efforts to avoid the arbitrary exercise of such power. The imminent threat of an Emergency-like situation gagging the internet may seem alarmist at the moment- but there certainly needs to be an active and concerted effort to examine the legality and necessity of shutdowns while putting in place strict procedural standards.
Sowmya Karun is a Project Manager at the Centre for Communication Governance at National Law University Delhi