Manipur has faced an internet shutdown since May 4, when it was engulfed in a conflict between two ethnic groups. This outage violates the guidelines laid down by the Supreme Court in 2020 for executive authorities to regulate internet suspension orders.
India has the unenviable distinction of having imposed the highest number of internet outages in the world over the past five years.
In Manipur, the executive authorities have disconnected an entire region in an attempt to control violence, despite the challenges it poses for the state’s economy, healthcare services and education sector.
But, as internet rights advocates and cyber experts point out, with the judiciary remaining a silent spectator on the open violation of the Supreme Court guidelines, the government will continue imposing arbitrary internet shutdowns.
Anuradha Bhasin judgment
In January 2020, the Supreme Court provided a detailed set of guidelines to regulate internet shutdown orders based on proportionality and necessity.
These were part of the landmark judgement in the Anuradha Bhasin versus Union of India case. The matter related to the indefinite internet suspension that was imposed in Jammu and Kashmir since August 2019, when its special status under the Constitution of India and its statehood had been abrogated.
The Supreme Court did not revoke the internet shutdown in Kashmir, but held, among other things, that Indian law did not permit the indefinite suspension of internet services, and that orders for internet shutdown are subject to judicial review.
Legal framework for internet shutdowns
Internet shutdowns are usually imposed under Section 144 of the Criminal Procedure Code, 1973, which allows a district magistrate to issue orders in “urgent cases of nuisance or apprehended danger”.
The provision empowers the district magistrate to regulate the use by any person of any personal property – which can be interpreted to cover the use of the internet – to prevent the breakdown of law and order.
This can only be done with a written order that clearly lays out the rationale for the decision.
In 2017, the Centre notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, under the Indian Telegraph Act, 1885, to govern the suspension of telecom services, including internet suspension. The Rules specify which senior bureaucrats can order the suspension of internet services.
It also specifies the grounds on which this can be done: in case of a “public emergency”, to safeguard “public safety”, “public order”, security, to protect India’s sovereignty and territorial integrity, relations with foreign States, or to prevent the incitement of a crime.
These orders must be issued in writing, containing the reasons for such a direction, and have to be reviewed, within five days, by a committee of three bureaucrats.
However, terms such as preventing the “disturbance of the public tranquility” and “annoyance to any person”, and “public emergency” and “public safety” are broad enough to encompass any kind of situation.
The guidelines issued in the Anuradha Bhasin verdict sought to remove this vagueness.
Among other things, the court severely restricted the government’s power to issue orders for an internet shutdown under Section 144 of the Criminal Procedure Code.
It reiterated other safeguards such as periodic assessments of the situation by the review committee, the publication of the shutdown order, and application of mind by the authorities to use their power in a reasonable, balanced and non-intrusive manner.
In November 2020, the Centre amended the 2017 Rules to specify that internet shutdown orders cannot be in operation for over 15 days.
World leader in internet bans
In Manipur, now, the internet has been snapped for over 60 days, with shutdown orders being re-issued every five days. The Internet Freedom Foundation, a non-governmental organisation that conducts advocacy on digital rights and liberties, has pointed out how the Manipur internet shutdown blatantly violates the Anuradha Bhasin guidelines.
But most internet shutdowns in India violate the Anuradha Bhasin guidelines, according to Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now, a non-profit that tracks internet shutdowns across the world.
According to an Access Now report from February, India accounted for 44.9% of all documented internet shutdowns in 2022, 58.1% of all documented internet outages in 2021, and 68.5% of documented shutdowns in 2020.
Another report by Human Rights Watch, a non-governmental organisation, and the Internet Freedom Foundation published in June identified 127 shutdowns from January 2020, when the Anuradha Basin guidelines were issued, to December 31, 2022.
Among these, internet shutdowns were imposed in 54 instances for protests, 37 instances to prevent exam cheating, 18 instances for communal violence, and 18 instances for law and order concerns.
On top of these 127 shutdowns, Jammu and Kashmir has witnessed at least 280 internet shutdowns from January 2020 till date, according to Gayatri Malhotra, Associate Litigation Counsel at Internet Freedom Foundation.
Jammu and Kashmir experiences the highest number of internet shutdowns among all states and Union Territories.
Courts remain mute
At the same time, the judiciary has not pushed the executive to comply with the Supreme Court verdict, and has more often than not remained a silent spectator to shutdowns that violate the Anuradha Bhasin case guidelines.
According to Maheshwari, there is a “sense of impunity” regarding the Anuradha Bhasin guidelines due to the absence of accountability or any consequences for violating them.
“So far, there also haven’t been clear orders from the courts to impose consequences for the violations of the Supreme Court’s directions and mandate their implementation,” she said.
“In the instances where courts have issued notice and asked particular governments regarding the protocol followed to impose shutdowns, there have been no clear, categorical answers,” said Maheshwari of Access Now.
In March, the Calcutta High Court lifted an internet shutdown imposed by the state government to prevent cheating during school examinations, and prohibited the future use of such shutdown orders.
This has been the only such instance of a court intervening to halt an internet shutdown, according to Malhotra of the Internet Freedom Foundation.
Currently, two matters challenging the manner of internet shutdowns are pending before the Supreme Court: an application filed by the Foundation for Media Professionals, one of the original petitioners in the Anuradha Bhasin case, to ensure compliance with the Anuradha Bhasin guidelines, and a writ petition filed by the Software Freedom Law Center, a non-profit, challenging the imposition of internet outages to prevent cheating in examinations in five states.
Parliamentary Committee pulls up Centre
In December 2021, a report by the Parliamentary Standing Committee on Communications and Information Technology, underlined gaps in the 2017 Rules and the governance architecture for internet shutdowns.
It had come down on state governments having ordered shutdowns for routine policing, and administrative purposes such as preventing cheating in exams and preventing local crime, and recommended putting in place a mechanism to decide the merit of an internet shutdown.
It had also urged the government to formulate a policy to selectively restrict the use of certain telecom services instead of banning the internet as a whole, in order to ensure minimum inconvenience to the general public, while at the same time meeting the objectives of the shutdown, such as curbing misinformation.
Another report by the committee published in February, criticised the government for not paying heed to the December 2021 report. It also called attention to records of internet shutdown orders not being maintained, either by the Union Ministry of Home Affairs or by the Department of Telecommunication.
However, the government has, so far, ignored the committee’s recommendations.
Why do Indian authorities excessively rely on internet shutdowns when compared to the rest of the world?
According to Radhika Jhalani, Volunteer Legal Counsel at the Software Freedom Law Center, “internet shutdowns are an easy, low-hanging fruit to tackle law and order breakdowns”.
A 2021 study by Dutch political scientist Kris Ruijgrok had, among other things, found that “[i]nternet shutdowns have become a first – instead of a last – resort for officials challenged with communal or social unrest”.
Jhalani underscored, however, that there is no evidence that such restrictions actually help control the situation. Instead, such shutdowns prevent accurate information from reaching the public, she added.
She emphasised that there must be more awareness about the devastating impact of such shutdowns on the lives of ordinary people. “For instance, gig workers lose their livelihoods on days when the internet is not available,” she said. “Digital payments get stuck.”
In Manipur, meanwhile, there are signs that the state government may have to modify the weeks-long internet shutdown. On July 17, the Supreme Court refused to interfere with an order of the Manipur High Court directing the state government to restore internet services partially. For now, the state government has been told to inform the Manipur High Court of the “difficulties” it faces in implementing the court’s order.