Last week, the Calcutta High Court passed a stay order against an internet shutdown imposed in several districts of West Bengal for the duration of the Secondary Examinations (11-16 March), purportedly imposed to prevent cheating and leaks of the paper.
The Court held that the official who issued the order lacked the jurisdiction or authority to do so, that the order was unreasoned and did not reveal a “public emergency” as required under the Internet Suspension Rules, and that the shutdown did not satisfy the test of proportionality.
The order of the High Court demonstrates the importance of immediate judicial scrutiny of internet shutdowns in the face of the normalisation of internet shutdowns in India.
The Dubious Imposition of Internet Shutdowns Across India
The internet is an indispensable tool in today’s world. Its importance has only been underlined by the pandemic, which has pushed all sectors of activity online. The internet is also a neutral medium which can be put to both ameliorative or detrimental ends.
For instance, while the internet is a tool to spread fake news it is also a tool to improve access to information.
We may draw an analogy with knives. Knives are used in kitchens every day but can also be used to inflict harm on others. The solution in such a situation cannot be to ban the use of knives altogether but to punish those who use knives to inflict harm.
The issuance of internet shutdown orders is an overbroad measure impacting not only persons that use it for harm but also persons who require the internet in an area for legitimate purposes.
As the petitioners before the Calcutta High Court argued, the shutdown that was purportedly imposed with the aim of preventing cheating in an exam also prevented other persons from undertaking bank transactions, taking online classes and carrying out their businesses.
Owing to the wide-ranging impact of the shutdown, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 provide that a shutdown can be imposed only when there is an occurrence of “public emergency” or in the interest of “public safety”, signifying an immediacy requirement.
Rule 2(2) also makes it clear that such an order must be a reasoned one. The Supreme Court has clarified that it must be a tool of “last resort” when no other means are available.
However, these criteria are regularly ignored by the Executive in India, and internet shutdowns have come to be employed as a routine tool of administering situations deemed dangerous or complex by the Executive.
This approach is seen especially when large scale protests are organised.
The Executive appears to act on a presumption that every protest is unlawful because it will necessarily become violent and therefore constitutes a threat to public safety.
Another context in which the Executive adopts a trigger happy approach is to prevent cheating and leaks over the internet in respect of examinations, as in the present case.
In both such situations, the Executive has the option of pursuing alternatives that restrict the rights of citizens to a lesser extent, such as arresting only those who indulge in violence during protests or banning the entry of cell phones in the examination premises.
Instead, the Executive frequently issues internet shutdowns – perhaps disregarding their overbroad nature in light of the fact that they require less manpower and effort from the Executive and are therefore more convenient.
However, administrative convenience cannot be a ground to restrict the freedom of speech, freedom of business, and freedom of association that internet shutdowns cause. Indeed, it amounts to what judges often refer to as the ‘use of a cannon to shoot sparrows.’
The Executive typically relies on vague references to “intelligence reports” and “inputs” to justify imposing internet shutdowns.
Crucially, the Calcutta High Court effectively held in its order granting stay that mere assertion of “intelligence reports” was insufficient as it was unsupported by reasons that establish the existence of a public emergency or is in the interest of public safety.
The Court also noted that the order did not provide reasons that establish that alternative measures were unavailable or unsuitable and thus did not satisfy the test of proportionality.
Calcutta HC is an Exception to the Norm
Interestingly, the Calcutta High Court’s order is only the second instance where an internet shutdown order has been stayed by the judiciary.
This number appears disproportionately small when we consider that around 558 internet shutdowns have been imposed in India since 2012 – for which India has even been labelled the shutdown capital of the world.
Many, if not most of these orders, would have likely met the same fate as the order of the West Bengal Government if put to judicial scrutiny. These orders are usually issued for short durations and so petitions challenging them often become redundant by the time they are finally heard by the Court.
Despite being for short durations, these routine orders imposing internet shutdowns across the country have a cumulative and detrimental impact on fundamental rights. In 2021 alone, these shutdowns are estimated to have cost India $582.8 million.
This estimate is striking, and this is without even mentioning other costs to fundamental rights that are difficult to quantify.
The Calcutta High Court’s order demonstrates that even at the interim stage, the judiciary can check the abuse of the power to impose internet shutdowns by examining whether the orders of the Executive comply with elementary requirements stipulated in the rules governing the provision of internet services and constitutional provisions.
However, we are yet to see courts appreciate the seriousness of internet shutdowns, especially when it comes to prioritising cases challenging shutdowns and ensuring swift remedies that efficaciously protect fundamental rights.
(Jahnavi Sindhu and Vikram Aditya Narayan are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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