tl;dr
On 16th December 2021, the United Nations Office of the High Commissioner for Human Rights (‘OHCHR’) released a call for submissions. OHCHR sought inputs from civil society to support a report on internet shutdowns. We have responded to the call for submissions. In our submission, we have summarized the legal basis of internet shutdowns in India, provided research on instances of mandated disruption of communication, explained the social, economic and political impact of these disruptions while commending the initiatives introduced by the Government of India to improve internet connectivity.
Background
On 13th July 2021, the United Nations Human Rights Council adopted a resolution on the promotion, protection and enjoyment of human rights on the internet. The resolution strongly condemned internet shutdowns and called upon States to refrain from such measures. The resolution also requested OHCHR to study the instances of internet shutdowns, analyse their causes, their legal implications and their impact on human rights. Pursuant to the resolution, OHCHR issued a call for submission on 16th December 2021. The call for submission sought information on the following topics:
- The occurrence of mandated disruption of communications
- Research conducted on the impact of mandated communications disruptions
- Initiatives promoting internet connectivity and bridging the digital divide.
- Initiatives undertaken as a part of international aid and development assistance promoting internet connectivity and bridging the digital divides.
We have responded to the call for submission. To assist the OHCHR, we have provided submissions on 3 of the 4 topics specified contained in the call for submission. Our submission is divided into three parts.
Legal basis for internet shutdowns
The first part of the submission is titled (a) The occurrence of mandated disruption of communication. In this part, we have summarised the legal basis of suspending internet services. We have pointed out that Section 5(2) of the Indian Telegraph Act (‘Telegraph Act’) permits the Central or State government to restrict or temporarily suspend internet services. However, the restriction can only be imposed on the occurrence of a public emergency or in the interest of public safety and if the government is satisfied that it is necessary to do so in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence. The procedure the government must follow to suspend internet services is provided in Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Suspension Rules’). Both, Section 5(2) of the Telegraph Act and the Suspension Rules were extensively considered by the Supreme Court in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637. In Anuradha Bhasin, in the context of a year-long communication shutdown in Jammu & Kashmir, the Supreme Court had held that internet shutdowns are a ‘drastic measure’ which may be imposed only if it is lawful, necessary and proportionate, and only after publishing internet suspension orders.
Apart from the above, in the first part of our submission, we have provided information on the instances of mandated disruption of communication. We relied on trackers maintained by Software Freedom Law Center and Meta, and a report prepared by Access Now to point out that internet shutdowns are extremely common in India. This is despite the fact that the law permits suspension of internet services only in exceptional circumstances. We also summarised and provided copies of the replies (here and here) we received to Right to Information applications we filed with 24 State Government and 8 Union Territories (‘UTs’) in September 2020 and again in October 2021. The responses we received demonstrated that State Governments and UT’s refuse to not publish or share copies of internet shutdown orders despite the direction of the Supreme Court in Anuradha Bhasin. As a result, those aggrieved are able to seek remedies under the law.
Impact and injury from internet shutdowns
The second part of our submission is titled (b) research on the impact of mandated disruption of communication and it summarises India-specific research on the impact of communication disruptions on economic, social and political activities in India. Pertinently, we have highlighted that as per Top10VPN the internet was shut down in India for 1,157 hours in 2021, and it cost the economy $582.8 million. In 2020, the internet was suspended for 8,927 hours, more than anywhere else in the world, costing the Indian economy $2.8 billion. In 2019, the internet was suspended in India for 4,196 hours, costing the Indian economy $1.3 billion.
This amounts to 14,280 hours of internet suspensions over three years and represents a loss of nearly $4.7 billion. We have also pointed out that internet shutdowns are used to prevent individuals from collectivising against decisions of the government as was evident when the internet was disrupted during protests against Citizenship Amendment Act or those against farm laws. This is despite the fact that the government has not conducted any analysis on whether internet shutdowns improve law and order concerns.
Promotion of internet connectivity
The third part of our submission is titled (c) Initiatives promoting internet connectivity and bridging the digital divide. This part relies on our findings from the Connectivity Tracker report published in January 2022 which found that despite the low cost of data in India ($0.68 per GB), in 10 out of 28 States and 2 out of 8 Union Territories less than 40% of women regularly use the internet. Moreover, only 1 out of 3 people access the internet in rural areas, while in urban areas people have, on average, more than one internet connection. This part also highlighted the measures introduced by the Government of India to remedy this situation such as National Digital Communications Policy, 2018, Universal Service Obligation Fund, Bharatnet project and National Broadband Mission.
Conclusion
Access to the internet must be seen as a right, rather than a service, especially in a developing country like India, with a digital population of 560 million, and where a 10% increase in internet connectivity can result in a 3.3% increase in per capita GDP growth. Despite this, internet connectivity is limited and internet shutdowns are common, and legal remedies often prove inadequate. We hope our submission assists OHCHR to study the instances of internet shutdowns, analysing their causes, their legal implications and their impact on human rights.
The submission was authored by Apar Gupta (Executive Director, IFF), Vrinda Bhandari (Of Counsel, IFF), Tanmay Singh (Litigation Counsel, IFF) and Krishnesh Bapat (Associate Litigation Counsel, IFF) with the assistance of Shivangani Misra (Capstone Fellow, IFF) and Gyan Tripathi (Policy Intern, IFF). The submission was designed by Ashlesh Biradar (Digital Literacy Fellow, IFF).
Important Documents
- IFF’s submission to OHCHR dated 10th February 2022. (link)
- OHCHR call for submission dated 16th December 2021. (link)