Rising Internet Shutdowns in India: A Legal Analysis

16(1) Indian Journal of Law and Technology (2021)

37 Pages Posted: 3 Mar 2021 Last revised: 21 Jun 2021

See all articles by Shrutanjaya Bhardwaj

Shrutanjaya Bhardwaj

Supreme Court of India; University of Michigan Law School; National Law University Delhi

Nakul Nayak

London School of Economics and Political Science

Sarvjeet Singh

National Law University Delhi; University of Michigan Law School

Raja Dandamudi

affiliation not provided to SSRN

Veda Handa

affiliation not provided to SSRN

Date Written: May 30, 2020

Abstract

In the backdrop of India's problematic record with internet shutdowns, this article undertakes a comprehensive analysis of the validity of internet shutdown orders vis-à-vis the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. To this end, shutdown orders are separately assessed under the three fundamental requirements of Article 19(2) which exhaustively lays down the manner in which, and the reasons for which, restrictions can be imposed on free speech. First, to assess whether shutdown orders are provided by law, the article studies and compares the various Indian legislations (both primary and secondary) under which shutdowns are imposed by the Central and State Governments, including the Telegraph Act, 1885, the Code of Criminal Procedure, 1973, and the Information Technology Act, 2000. The requirement of publication of shutdown orders – another component of lawfulness/legality – is also discussed. Second, the legitimacy of shutdown orders is assessed against the exhaustive list of aims contained in Article 19(2), with a specific focus on "public order". Third, on reasonableness, the article identifies various factors that ought to be considered by courts in determining whether an internet shutdown is a reasonable and proportionate response to the problem at hand.

The article also examines judicial trends with respect to challenges mounted against internet shutdown orders. All relevant judicial orders – right from the Gujarat High Court's abdication of constitutional responsibility in Gaurav Vyas (2015-16) all the way up to the Supreme Court's abdication in Foundation for Media Professionals (2020) – are studied and critically analyzed. Before concluding, we identify possible areas of further research to take forward the discourse on finding the right balance between the demands of free speech and societal security concerns.

Keywords: internet shutdown, internet blackout, internet disruption, freedom of expression, digital rights, judicial abdication

Suggested Citation

Bhardwaj, Shrutanjaya and Nayak, Nakul and Singh, Sarvjeet and Krishna Dandamudi, Raja Venkata and Handa, Veda, Rising Internet Shutdowns in India: A Legal Analysis (May 30, 2020). 16(1) Indian Journal of Law and Technology (2021), Available at SSRN: https://ssrn.com/abstract=3758553 or http://dx.doi.org/10.2139/ssrn.3758553

Shrutanjaya Bhardwaj (Contact Author)

Supreme Court of India ( email )

New Delhi
New Delhi, 110001
India

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

National Law University Delhi ( email )

New Delhi
India

Nakul Nayak

London School of Economics and Political Science ( email )

London WC2A 2AE
United Kingdom

Sarvjeet Singh

National Law University Delhi ( email )

Sector- 14, Dwarka
Dwarka
New Delhi, Delhi 110078
India

HOME PAGE: http://https://ccgdelhi.org/person_status/staff/

University of Michigan Law School ( email )

Ann Arbor, MI
United States

Raja Venkata Krishna Dandamudi

affiliation not provided to SSRN

Veda Handa

affiliation not provided to SSRN

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