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(Naina Agarwal and Archie Anant are third year students of Rajiv Gandhi National University of Law, Patiala) “The internet is a powerful example of free speech and the free market in action; it is curious that the Net has alarmed the lawmakers of a nation founded on those principles.” - Denise Caruso INTERNET AND DEMOCRACY Welcome to the 21st century, where due to technological advancements, the internet has become ‘voice of the people’. With its increasing availability at low cost, the internet has become the facilitator of people’s fundamental rights, especially right to free speech and expression, accessing information and forming associations. Through internet platforms, massive political changes have been brought in various democratic and authoritarian countries by mobilizing people easily within a limited time frame. Many revolutions and movements like ‘#MeToo movement’, ‘Jan Lokpal’, ‘Arab Spring’, ‘SlutWalk’, ‘WikiLeaks’ etc. have gained momentum through internet platforms. It not only promotes private interest but public interests too. Democracy is way beyond voting or choosing representatives. Democracy is about ‘citizens’ who are empowered to disseminate information required for their governance. Habermas would have called the Internet a new ‘public sphere’. LEGAL FRAMEWORK Internet shutdown comes in conflict with not only Article 19(1)(a) which provides for “free speech and expression” in a democratic set up but also violates Article 19(1)(g) as it infringes person’s “right to free trade and commerce”, since internet proselytizes consumerism and choice availability. The court in Gaurav Sureshbhai Vyas v. State of Gujarat,rejected a petition for declaring internet shutdown as unconstitutional, as it was required to maintain peace and order after Patel agitations. This flouts Article 14 which provides for equality. The digital discrimination might count against minority or ethnic groups. The government’s flagship program of ‘Digital India’ aims at making the internet the medium but leads to digital divide. The license agreement is provided by the government to ISP calls for blocking few websites. Hence, such ‘whitelists’ cannot be justified. Even the SC in Shreya Singhal v. UOI, declared Section 66A as unconstitutional since it mismatched with reasonable restrictions [Article 19(2)], and was too broad and vague and emphasized on proximity. Earlier, it was justified under the Telegraph Act, 1885.The SC in Hukum Chand Shyam Lal v. UOI, declared that limitations can be imposed under Telegraph Act only in emergency or public safety. But in 2017, Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules were formulated which adds up bureaucratic layers inviting red tapism. Also, it has loose architecture and undefined terms like ‘public emergency’, ‘public safety’ which gives room for broad interpretation. Hence, SC in Anuradha Bhasin v. UOI focused on ‘proportionality and necessity test’ along with cost benefit analysis. It widened the scope of judicial review by asking the government to make orders public and to promote transparency. Section 144 CrPC is constructed for emergency situations and words ‘likely’ and ‘tends’ as mentioned sets the floor for arbitrary actions. The phrases like ‘obstruction’, ‘annoyance’, ‘health and safety’, ‘public tranquility’, ‘riots’ and ‘affray’ do not match with reasonable restrictions mentioned in Article 19(2). INTERNATIONAL OUTLOOK The phenomenon of internet shutdown has serious implications upon human rights and cannot be overlooked under any circumstance. In 2016, UN added Article 19, in UDHR and ICCPR, which propounded as follows: “The same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.” In the same document, restrictions of such rights was condemned, to which many countries including democratic India objected to. Contrarily, Democratic Zimbabwe Court has declared that “government surpasses its authority in shutting down internet”. Similarly, Sudan restored full internet connectivity. ‘Digital India’ through ICT diversely aims at achieving Sustainable development goals in health, education, economic growth but end up itself as antithesis or counterproductive. POLITICAL MANEUVERING The administrators of internet shutdown base their actions on the grounds of maintaining law and public order. The government justifies internet shutdowns on the ground of grave misuse of the internet by many terror organizations propaganda like rumor mongering, raising proxy wars, and spreading fake news. The rationale behind such a bold step emanates from the constitutional value of “ordered security”, a concept propounded in the case of State of U.P. v. Lalai Singh Yadav. Ordered security ensures the precedence of public order over free speech in case of conflict between the two. It establishes in appropriate circumstances, government's regulatory interest in community safety can outweigh an individual's liberty interest. However when the government of a democratic country starts arbitrarily using such mechanisms, it becomes a draconian and extra-constitutional utilization of power. For instance, the judgment of Rajasthan High Court regarding the arbitrary suspension of mobile services for the conduction of a recruitment examination, in order to prevent cheating, barred Rajasthan from the imposition internet shutdowns during any examinations in the future. Manipulation of democratic processes like elections, through internet shutdowns, can be comprehended as a latent motive of the government in certain cases. It facilitates in curbing dissent. However, elections are no guarantee that the country is a democracy; dissent is the guarantee for a democracy. The Scholar Jan Rydzak, in his work, explained that internet shutdown might not even play a role in ensuring public order as in fact that internet allows wide coordination in order to demonstrate a peaceful protest and the opposite might lead to violent outbreaks. The remedy to such unconstitutional step taken by government lies in the application of reasonable restrictions. The Honorable Supreme Court in, the case of K. S. Puttaswamy v. Union of India, upheld that the doctrine of proportionality has to be applied whenever restrictions are being imposed by the State on the fundamental rights of citizens. It observed as under: “… Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…” PARADOX OF LIBERTY VS SECURITY Liberty is one of the most crucial foundation stones of a democracy. It is an explicit guarantee made to the citizens of India by its Constitution. The rampant episodes of internet shutdown, however, challenge the inherent nature and basic framework of the Indian Constitution. It curtails an individual’s liberty under the garb of the essentiality of dominance of security over liberty. It puts liberty and security at loggerheads. Such a situation leads to a question of what is more important between the two. In a democracy, it must be ensured that adequate security along with sufficient liberty is maintained. As propounded in Anuradha Bhasin vs Union of India, the pendulum of preference should not swing in either extreme direction. The concept of security needs to be broadened in a manner that it is not only capable of combating contemporary threats but also compliments the democratic principle of liberty. Moreover, the excessive emphasis on liberty might also prove to be threatening to the overall security of the people as it might be used by propagandists to raise seditious movements against the state. In this regard the words of Attorney General John Ashcroft are quite pertinent, as he said “To those…who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.” The democratic society is one which has always aimed to strike the right 'balance' between liberty and security. The conundrum of liberty and security should be resolved in order to make the principles of a democracy stand in consonance and not in contradiction with one another. THE AFTERMATH: WHO IS ACCOUNTABLE? The internet shutdown has caused havoc in tourism dependent states like Rajasthan, Darjeeling, J&K etc. wherein poor communication with customer, inability to book tickets online, reputational damage to hotels have affected directly or indirectly. The local business and startups have suffered considerably and substantially in cases where they relied on apps, e-payments and platforms, violating their right under Article 19(1)(g). For instance, KartFood, connoted as ‘Zomato of J&K’ earning colossally, were forced to move out from business. Many government schemes like food distribution, DBT, etc. find their foundation in ICT. The mammoth economic losses have never been contemplated by government in such cases. Students are denied access to educational platforms, thereby violating and discriminating their right to access internet freely like others. Citizens are unable to contact hospitals in cases of emergency, causing loss of lives and gargantuan violation of human rights. Not only had this led to economic repercussions but caused psychological mental breakdowns leading to isolation and exclusion, thus contravening with Article 12 of ICESCR. Indian Journalist Safeena Wani reported that during internet shutdown in 2016, hospitals in J&K were unable to communicate with specialists to repair the instruments necessary for life saving, whereas many such cases go unreported. This questions the efficiency of democratic government’s ‘digitalization in health services’. INTERNET SHUTDOWN: DEFIANCE OF DEMOCRACY Internet shutdown in the contemporary world can be clearly seen as a manifestation of digital repression. It is being used as an instrument to suppress the voice of the mavericks, which might pose a potent threat to the political standing of the government. Moreover, absolute as well as partial shutdown of the internet can be comprehended as an imposition of a latent form of censorship so as to curb any arising dissent in every possible manner. This is a blatant violation of the principles of a democracy and leads to the formation of a dysfunctional democratic society. Under the veil of greater good, it is a grave curtailment of the very essence of democracy. The following words of James Madison encapsulate the effects of the wrongful and unlawful gimmicks used by the government to access an unrestricted flow of power: “A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.” - Naina Agarwal & Archie Annant
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