MC Explainer: What is internet shutdown? What has the Supreme Court said about it?

Moneycontrol explains what the Supreme Court held on internet shutdowns and what is the law on internet shutdowns in the UK and the US.

The Haryana state government, in the wake of the ongoing farmer protests, has been issuing orders for internet shutdown from time to time, the latest such order directing an internet shutdown in the affected districts will expire on February 23.

In 2023, the Manipur state government had ordered an internet shutdown in the state due to ethnic clashes. Manipur’s internet shutdown was challenged in the Supreme Court. However, it was ultimately withdrawn as the apex court opined that such cases should be pursued in the high court first.

A report by Access Now, a digital civil rights organisation, claimed that the governments in India had imposed a total of 84 internet shutdowns in 2022, the most by any country in the world that year.

Internet shutdown orders are usually issued by the government under Section 144 of the Criminal Procedure Code, 1973. This provision of law empowers the district magistrate of an area to issue prohibitive orders if he apprehends an adverse law and order situation. The essential motive of this section is to enforce “temporary measures to maintain public tranquillity”. In addition to the criminal code, the Telecom Services (Public Emergency or Public Service) Rules, 2017 under the Telegraph Act empowers the government to order a shutdown.

The Supreme Court had in 2020 discussed the issue of internet shutdowns in the context of Kashmir. In a lengthy judgment, the apex court spoke of how essential the internet is for existence in this day and age and what approach the government should adopt in case it wishes to implement internet shutdowns.

Moneycontrol explains what the Supreme Court held on internet shutdowns and what is the law on internet shutdowns in the UK and the US.

What's the Supreme Court’s ruling on internet shutdowns?

In 2019, when the Union government decided to abrogate Article 370 in Jammu and Kashmir, the administration issued an order to discontinue mobile phone networks and internet services in the valley.

This was challenged in the apex court by journalist Anuradha Bhasin and politician Ghulam Nabi Azad by filing writ petitions. Bhasin had contended that the media came to a grinding halt in Kashmir due to the non-availability of internet services in the valley. According to Bhasin, internet “is absolutely essential for the modern press”. She contended that curtailment of the internet is a restriction on the right to free speech.

Azad had contended that orders of internet shutdown which place restrictions on a person’s fundamental rights must be produced before the court and cannot be called ‘privileged documents’. According to Azad, internet shutdowns not only impact the right to free speech of individuals but also violate a citizen’s right to trade or profession. In view of this, less restrictive measures, such as restricting only social media websites like Facebook and WhatsApp, should be passed, he had said.

In its judgment, the court held, “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoy constitutional protection.” Furthermore, the court directed that restriction upon the fundamental right of the internet must be imposed as per provisions of the Constitution and any such restriction must have a proportional reasoning. In effect, the court held that internet shutdowns can be authorised only under extraneous circumstances.

Furthermore, the court ruled that an order shutting down the internet indefinitely is impermissible under the law. According to the court, any order suspending internet services will be subject to judicial review. The court held that “Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.”

The court also concluded that repetitive orders of internet shutdown under section 144 would amount to abuse of power.

How does internet shutdown work in the US and the UK?

In the UK, two legislations – the Communications Act 2003 and the Civil Contingencies Act 2004 – empower the government to suspend/shut down internet services. However, such a measure can only be enforced in times of emergency to protect the public and safeguard national security. According to the Civil Contingencies Act, any emergency regulation issued by the government lapses in 30 days, the government can nevertheless renew the suspension of internet services before the time lapses.

In the US, two primary legislations broadly deal with shutting down the internet. First is a 1934 law called the Communications Act and second is a 1996 Act called the Telecommunications Act. According to section 706 of the Communications Act, the president of the US can order the shutdown of any communication if he finds it necessary for the national defence and security, to direct that such communications as in his judgment may be essential to the national defence and security shall have preference or priority with any carrier subject to this Act.
However, in both countries, neither of these laws has been used in a long time.