We need greater clarity on internet freedom in India

The Supreme Court of India’s recent judgment on internet shutdowns was initially seen as a strong denouncement, but closer examination reveals it’s not an outright condemnation. While emphasizing that shutdowns must be reasonable and proportionate, the court did not elevate internet access to a fundamental right, nor did it provide a clear ruling on the constitutionality of internet shutdowns.

This article was first published in The Mint. You can read the original at this link.

Last Friday, the Supreme Court of India issued a judgement that, according to initial reports, was a strong denouncement of internet shutdowns in general and offered immediate relief to the situation in Kashmir. Several internet policy groups I am a part of immediately declared victory, and faith in the judiciary, at least in some measure, seemed to have been restored. However, upon closer reading, it appears the judgement is not the stinging indictment of internet shutdowns it seemed at first glance.

In the first place, access to the internet has not, as early reports seemed to suggest, been elevated to the status of a fundamental right. I found it interesting that the court, in setting out its views on the issue, chose to rely on an op-ed by Vint Cerf in The New York Times who wrote that while the internet is very important, it is an enabler of rights and should not be a right in itself.

I actually agree with this framing. We are better served by presenting human rights in terms of outcomes we need to achieve, rather than elevating the tools that achieve these outcomes to a higher status. As much as the internet might be an enabler of free speech today, that is only until some new technology comes along to replace it. What’s important is to ensure that the underlying human right to freedom of speech and expression prevails, regardless of the technology through which it is achieved.

The court went on to say that since the internet has become one of the major means of information diffusion, “freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a)”. Accordingly, restrictions imposed on the internet have to be in accordance with Article 19(2) of the Constitution. If the internet is shut down, it should only be under a law that imposes a reasonable restriction and which is invoked under exceptional circumstances, such as in the interests of the security of the state, public order or in relation to an incitement to an offence. In other words, internet shutdowns must be reasonable and proportionate.

Applying this broad proposition, the court asked if access to the internet could be selectively denied, as that is the correct proportionate response to exceptional circumstances. The government of India appears to have responded categorically that this was not possible as the technology to do so does not exist. It is not clear what the government means, since it has in the past and continues to selectively deny people access to various websites and internet services (such as those that serve pornographic content). Surely, it could use the same technology to deny access to portions of the internet, as the court was requesting. Perhaps what the government really meant was that while it is possible, the selective shutdown of a specific service is useless to law enforcement because of the way in which the internet is designed.

In this, the government is not entirely wrong. The internet is a hydra-headed beast and if you cut off one head, two others will spring up in its place. If you want to protect your citizens from harm by preventing the evil among them from communicating over the internet, you will find that goal impossible to achieve by simply shutting down specific sites. The only way to make sure that certain people do not communicate with one another over the internet is to ensure that no one communicates at all.

But is that sort of thinking ever acceptable? We may not want rash drivers to recklessly kill pedestrians, but we don’t go about banning cars. We don’t want people to die of lung cancer, but we certainly haven’t gone about banning cigarettes. It is only when a particular product or technology can only ever be used for harmful purposes—such as guns or biological weapons—that such stringent measures have been applied.

Disappointingly, the court chose to accept the government’s arguments at face value, mildly suggesting that the government take steps to achieve peace in the Valley without excessively burdening the freedom of speech, but requesting it to consider restoring internet access to government websites, localized and limited e-banking facilities, hospitals services and other essential services.

The court was a bit more decisive when it came to the indefinite suspension of the internet, holding that the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, were supposed to address temporary shutdowns only. Using these provisions to indefinitely deny internet access was impermissible. The court ordered the review committee under the rules to conduct a periodic review of any shutdown order within seven working days of the previous review. As for existing orders, the state was ordered to review them to ensure that they meet the test of proportionality.

Useful as it is for a judgement of the Supreme Court to set out guiding principles, it would have been far better to have a clear ruling on whether internet shutdowns in the Valley are constitutional or not. By exercising restraint, the Supreme Court has just kicked the can down the road.