Vol.16 Issue 1 (2020)
Rising Internet Shutdowns in India: A Legal Analysis
Shrutanjaya Bhardwaj, Nakul Nayak, Raja Venkata, Krishna Dandamudi, Sarvjeet Singh and Veda Handa
The central theme of this paper is to critically study the interplay of internet shutdowns with the right to freedom of speech and expression. A study of this nature is necessitated by India’s abysmal record with inter- net shutdowns. We must hence begin examining Internet shutdowns seriously within the Indian constitutional framework. In the recent judgment of Anuradha Bhasin, the Supreme Court has accepted that Article 19(1)(a) protects the right to disseminate and receive information through the internet. Therefore, the constitutional validity of every internet shutdown would have to be tested (at least) against the three standards ordinarily applied to test restrictions on the freedom of speech.
Accordingly, this paper sequentially analyzes internet shutdowns against these three requirements. Part I of this paper addresses the lawfulness prong by studying the statutory regime that is used by the executive to impose internet shutdowns. The Telegraph Act, 1885 (and the rules framed thereunder), the Code of Criminal Procedure, 1973, and the Information Technology (Amendment) Act, 2008 (and the rules framed thereunder) are studied and compared. Part II explores the meaning of public order, which is the most relevant ground from the list given in Article 19(2) in the context of internet shutdowns. Part III explains the concept of reasonableness, which is the final requirement of Article 19(2). Part IV examines judgments in which the Indian Supreme Court and various High Courts have considered the validity of internet shutdowns and applied (or failed to apply) the relevant constitutional principles.
Shrutanjaya Bhardwaj is a lawyer in Delhi and a Fellow at the Centre for Communication Governance at National Law University Delhi (CCG); Nakul Nayak was a Project Officer at CCG. He is currently a Lecturer at Jindal Global Law School; Sarvjeet Singh is a Doctoral Candidate at National Law University Delhi, Raja Venkata Krishna Dandamudi was a Research Associate at CCG, and Veda Handa is technology policy lawyer in Delhi and was a Research Assistant with CCG.