Internet Suspensions and Separation of Powers: changing the equation

Abstract

The Internet, a medium of communication, commerce and governance, is increasingly subjected to government control, like absolute Internet Suspensions. India, the world’s largest democracy, has had the largest number of such Suspensions in recent years. This is due to its internet suspension legal regime not conforming to separation of powers. In 2020, the Supreme Court in Anuradha Bhasin, extended constitutional protection to freedom of online expression. However, it failed to address the concentration of power in the Executive, and the Review mechanism being inconsistent with Principles of Natural Justice. The paper draws a comparison to the United Kingdom and the United States jurisdictions which conform to Separation of Powers, through legislative and judicial oversight respectively. These insights are utilized to devise a policy reform for India. The Suspension Rules should be replaced by a validly enacted legislation, with a review mechanism consistent with Principles of Natural Justice and with ex-ante remedies.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The United Nations Human Rights Council has recognized that ‘the same human rights that people have offline must be protected online.’ The resolution on ‘the promotion, protection and enjoyment of human rights on the Internet’ (A/HRC/38/L.10/Rev.1) was adopted in the 38th Session of the HRC in Geneva. In Anuradha Bhasin v. Union of India, the Supreme Court of India extended the Right to Freedom of Speech and Expression and Right to Freedom of Trade (guaranteed as fundamental rights under Article 19 of the Constitution) to online forms of expression. See, Anuradha Bhasin v. Union of India 2020 SCC OnLine SC 25; Stephen Tully, ‘A Human Right to Access the Internet? Problems and Prospects’, (2014) 14 (2) Human Rights Law Review 175.

2 In Faheema Shirin v. State of Kerala, the High Court of the Indian State of Kerala held ‘Right to Internet’ to be a Fundamental Right under Right to Privacy and Right to Education as have been read into Right to Life under Article 21 of the Indian Constitution. See, Faheema Shirin v. the State of Kerala 2019 SCC OnLine KER 2976. Article 56 of 2019 Interim Constitution of Sudan also recognised a ‘Right to Internet.’

3 The terms ‘Internet kill-switch’, ‘Internet Shutdown’ and ‘Internet Suspension’ may be used interchangeably. However, this paper uses ‘Internet Suspension’ uniformly throughout the paper.

4 PN Howard, ‘The Dictators’ Digital Dilemma: When Do States Disconnect Their Digital Networks?’ (2011) 13 Issue in Technology Innovation <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2568619> accessed 1 July 2020.

5 ‘Targeted, Cut Off, And Left In The Dark: The #Keepiton Report On Internet Shutdowns In 2019’ (Access Now, 2019) <https://www.accessnow.org/cms/assets/uploads/2020/02/KeepItOn-2019-report-1.pdf> accessed 1 July 2020.

6 Ibid.

7 Shadab Nazmi, ‘Why India shuts down the internet more than any other democracy’ (BBC, 19 December 2019) <https://www.bbc.com/news/world-asia-india-50819905> accessed 1 July 2020.

8 Rajat Kathuria, and others, ‘The Anatomy of an Internet Blackout: Measuring the Economic Impact of Internet Shutdowns in India’ (Indian Council for Research on International Economic Relations, April 2018) <https://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf> accessed 1 July 2020.

9 Constitution of India, Art 50; In Re Delhi Laws Act 1912 AIR 1951 SC 332; Rai Sahib Ram Jawaya Kapur v. The State Of Punjab AIR 1955 SC 549; Justice (retd.) Ruma Pal, ‘Separation of Powers,’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of The Indian Constitution (Oxford University Press 2010).

10 Jonathan R. Macey, ‘Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory’ (1988) 74 Va L Rev 471.

11 Anuradha Bhasin v. Union of India 2020 SCC OnLine SC 25.

12 Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

13 Code of Criminal Procedure 1973, s 144. For the purpose of this section and in the general Indian context, these magistrates are not judicial officials per se. They are bureaucrats, members of the Indian Administrative Service, entrusted with duties of local administration.

14 Nakul Nayak, ‘The Legal Disconnect: An Analysis of India’s Internet Shutdown Laws’, (2018). IFF Working Paper 1/2018, <https://ssrn.com/abstract=3254857> accessed 24 April 2020.

15 Code of Criminal Procedure 1973, s 144.

16 ‘Living in Digital Darkness: A Handbook on Internet Shutdowns in India’ (SFLC, 2018) <https://sflc.in/sites/default/files/reports/Living%20in%20Digital%20Darkness%20-%20A%20Handbook%20on%20Internet%20Shutdowns%20in%20India%2C%20May%202018%20-%20by%20SFLCin.pdf> accessed 24 April 2020.

17 Suspension Rules, r 2(1).

18 Ibid.

19 Suspension Rules, r 5(i).

20 Suspension Rules, r 5(ii).

21 Harishankar Bagla And Another v. The State Of Madhya Pradesh AIR 1954 SC 465; Gwalior Rayon Silk Mfg. (Wvg.) Co v. The Asstt. Commissioner Of Sales AIR 1974 SC 1660.

22 Rai Sahib Ram Jawaya Kapur v. The State Of Punjab AIR 1955 SC 549.

23 Vasu Dev Singh v. Union of India (2006) 12 SCC 753; R.G. Jacob v. Republic of India (1963) 3 SCR 800.

24 Gaurav Sureshbhai Vyas v. State of Gujarat 2015 Indlaw GUJ 179. In this case, the Gujarat High Court held that the Magistrate does, in fact, have the power to order internet suspension under S.144 of CrPC.

25 Suspension Rules, r 2(1).

26 For the purpose of clarification, S.144 may be a much broader provision than just providing the power to suspend internet. However, internet suspension is definitely one of the strands of S.144. The delegated legislation cannot, per principle laid down in Rai Sahib Ram Jawaya Kapur v. The State Of Punjab among other cases [based on the larger principle of Separation of Powers], amend even a strand of legislation.

27 Nakul Nayak, ‘The Legal Dithe Supreme Courtonnect: An Analysis of India’s Internet Shutdown Laws’, (2018). IFF Working Paper 1/2018, <https://ssrn.com/abstract=3254857> accessed 24 April 2020.

28 Rai Sahib Ram Jawaya Kapur v. The State Of Punjab AIR 1955 SC 549.

29 Yashomati Ghosh, Textbook on Administrative Law (LexisNexis 2015) 38.

30 Ibid.

31 Suspension Rules, r 2(1).

32 Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

33 2020 SCC OnLine SC 25.

34 Ibid.

35 Suspension Rules, r 2(2).

36 Ibid.

37 The grounds included under Article 19(2) are–‘the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.’

38 PUCL v. Union of India AIR 1997 SC 568.

39 J.P. Mitter v. Union of India 1964 AIR SC 499.

40 Yashwant Sinha v. CBI (2019) 6 SCC 1.

41 Ibid.

42 Anuradha Bhasin v. Union of India 2020 SCC OnLine SC 25.

43 ‘Article 370: Broadband services restored in Kashmir after 213 days’ (APN Live, 5 March 2020) <https://www.apnlive.com/article-370-broadband-services-restored-in-kashmir-after-213-days/> accessed 25 April 2020.

44 2020 SCC OnLine SC 25.

45 However, in the case of absolute internet shutdowns, there is no involvement of significant technical knowledge so as to question the competency of Courts. Courts in India have repeatedly upheld their power to assess even matters of secrecy and national security to deliver justice.

46 Union Of India v. Cynamide India Ltd 1987 AIR SC 1802.

47 Suspension Rules, r 2(6).

48 Yashomati Ghosh, Textbook on Administrative Law (LexisNexis 2015) 167.

49 Ibid.

50 Suspension Rules, r 2(5).

51 The Government Of India (Transaction Of Business) Rules, sch 1, r 6(1).

52 S.R Maheshwari, Public Administration in India: The Higher Civil Service (Oxford University 2006).

53 Anuradha Bhasin v. Union of India 2019 SCC OnLine SC 1725.

54 Yashomati Ghosh, Textbook on Administrative Law (LexisNexis 2015) 143.

55 Jonathan R Macey, ‘Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory’ (1988) 74 Va L Rev 471.

56 Tom Embury-Denis, ‘Extinction Rebellion: London Tube wifi shut down by police in attempt to disrupt climate change protesters’ (BBC, 17 April 2019) <https://www.independent.co.uk/news/uk/home-news/london-tube-wifi-down-internet-not-working-underground-protest-extinction-rebellion-a8873681.html> accessed 1 July 2020.

57 Communications Act 2003, s 132.

58 Francesca Musiani and others, The Turn to Infrastructure in Internet Governance (Palgrave Macmillan, New York 2016) 177.

59 As defined in Section 20(3) of the Civil Contingencies Act 2004 to include the Prime Minister, Principal Secretaries and Treasury Commissioners.

60 Civil Contingencies Act 2004, s 20(2).

61 Civil Contingencies Act 2004, s 21(2).

62 Communications Act 2003, s 192; The Competition Appeal Tribunal of the United Kingodm was created by Section 12 and Schedule 2 to the Enterprise Act 2002.

63 The JAC created though the Constitutional Reform Act 2005 (CRA), recommends candidates for offices such as the High Court, Upper Tribunals and all others listed in Schedule 14 of the CRA, as amended by the Crime and Courts Act 2013

64 Civil Contingencies Act 2004, s 27(1)(a).

65 Ibid, s 27(1)(b).

66 Ibid, s 23(5)(b)

67 Ibid, s 26(1)(a)

68 Reno v. ACLU 521 U.S. 844, 852–53, 868–69 (1997).

69 Goldin v. Public Utilities Commission, 23 Cal. 3d 638 (1979).

70 Communications Act 1934, s 706.

71 U.S. Constitution, art I, s 8, cl 11.

72 ‘Analysis of S. 773, Cybersecurity Act of 2009’ (Centre for Democracy and Technology, May 2009) <https://cdt.org/wp-content/uploads/security/20090511_rocksnowe_analysis.pdf> accessed 1 July 2020. Section 18(2) and 18(6) of the Cybersecurity Act of 2009 granted suspension powers to the US President.

73 Cybersecurity Act of 2009, s 249.

74 ‘S. Rept. 111–368 – Protecting Cyberspace As A National Asset Act Of 2010’ <https://www.congress.gov/congressional-report/111th-congress/senate-report/368/1> accessed 1 July 2020.

75 The presence of thousands of ISPs and majority of the world wide web traffic passing through the United States would make it a challenge to impose an effective Internet suspension.

76 SM Ruggiero, ‘Killing The Internet To Keep America Alive: The Myths And Realities Of The Internet Kill Switch’, (2011) 15(2) SMU Sci. & Tech. L. Rev 241.

77 California Law Revision Commission, Government Interruption of Communication Service (June 2016) 691 <http://www.clrc.ca.gov/pub/Misc-Report/TR-G301.pdf> accessed 2 July 2020.

Additional information

Notes on contributors

Devansh Kaushik

Devansh Kaushik is a third-year student of Law at the National Law School of India University, Bangalore, India. He can be reached at: [email protected].

Vasu Aggarwal

Vasu Aggarwal is a third-year student of Law at the National Law School of India University, Bangalore, India. He can be reached at: [email protected].