CONSTITUTIONAL VALIDITY OF INTERNET SHUTDOWNS IN INDIA

Introduction

Today, the internet has become an indispensable part of our daily lives. It makes our lives easier, faster, and more efficient, providing facts, figures, and information essential for personal, social, and economic development. However, the use of the internet in our daily life depends on individual requirements and goals.

Despite its numerous benefits, there are situations where the government temporarily shuts down the internet in certain areas. An internet shutdown means cutting off internet service in an area due to cyberattacks, national security concerns, censorship, or disasters. The government shuts down internet access in small or large areas of its country to maintain peace and prevent disturbance.

According to data collected by the Software Freedom Law Centre (SFLC), India has topped the global list of countries imposing internet bans, with 60 percent of all blackouts recorded globally between 2016 and 2022. The reasons stated by the state include national security and threats to public safety. The Indian Government ordered a total of 780 shutdowns between January 1, 2014, and December 31, 2023. Shutdowns were also imposed in Jammu and Kashmir during protests against the Citizenship (Amendment) Act in 2019 and during the farmer’s protests following the introduction of the Farm Bills in 2020. In 2020, more than 70 percent of global economic activity was impacted by internet shutdowns in India. Jammu and Kashmir experienced the highest number of shutdowns over the last 12 years. The longest blackout occurred in Manipur in 2023, lasting from May to December amid ethnic clashes.

Internet shutdowns have raised significant constitutional concerns. Since the internet has become an essential medium for exercising fundamental rights such as freedom of speech and expression, carrying out trade and business, and accessing information, any restriction on internet service directly violates fundamental rights guaranteed under the Constitution of India. Therefore, it becomes necessary to examine whether internet shutdowns are constitutionally valid and whether they satisfy the principles of legality, necessity, reasonableness, and proportionality.

This article examines the constitutional validity of internet shutdowns in India, the legal frameworks governing such shutdowns, the constitutional rights infringed, and judicial decisions rendered by Indian courts. It also critically evaluates whether the state adequately protects the fundamental rights of citizens.

Legal Framework Governing Internet Shutdowns

These provisions empower the central government, state government, or authorized officers to temporarily shut down the internet and suspend telecommunication services under specific circumstances. These powers can be exercised only in accordance with the law and cannot be used arbitrarily. The legal framework governing internet shutdowns in India is based on the following:

Section 5(2) of The Indian Telegraph Act, 1885

The government can exercise these rights only when there is an emergency (war, attacks, disaster, riots) and the public is at risk. This can be exercised by the Central Government, State Government, or an officer authorized by law.

The government exercises this power only when necessary and cannot act unreasonably. The reasons for implementing these rules are to protect India’s sovereignty, integrity, and national security, as well as to maintain peace and prevent disturbance during riots. The government must state reasons in writing for its decision. This section involves both phone tapping and internet shutdown. Section 5(2) has served as the legal basis for several internet shutdowns in India and has been examined by the Supreme Court in the landmark case of Anuradha Bhasin v. Union of India, where the Court clarified the constitutional limitations on the exercise of this power.

The Temporary Suspension of Telecom Service (Public Emergency or Public Safety) Rules, 2017

This rule prescribes the procedure that must be followed before internet or telecom services can be suspended. Internet and telecom shutdowns in India are notified under the Indian Telegraph Act, 1885.

Under this rule, issuance of a suspension or shutdown order is made by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. In unavoidable situations, an authorized officer of the state or central government may issue such an order, and it must be submitted for examination before the competent approval authority.

These rules also establish a Review Committee for examining whether such suspension orders comply with the requirements of law. The committee has the power to check whether such restrictions are arbitrarily imposed by the government.

The 2017 rules have been replaced and superseded by the Telecom (Temporary Suspension of Service) Rules, 2024, framed under the Telecommunications Act. The 2024 rules require the government to look for alternatives before issuing a suspension order and prescribe a 5-day time limit for review by a committee.

Constitutional Rights Affected by Internet Shutdowns

Internet shutdowns have a direct impact on several fundamental rights guaranteed under the Constitution of India.

Article 19(1)(a): Freedom of Speech and Expression

Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression. This means every individual has the right to speak and express their opinions and ideas freely and has the right to criticize any policy, rule, and law of the government by expressing their views in writing, painting, articles, or other forms of communication.

However, internet shutdowns restrict people’s ability to write, express, and access information. When suspension occurs, it restricts citizens from sharing information or participating in public discussions.

Consequently, prolonged internet shutdowns may significantly affect the effective exercise of the freedom guaranteed under Article 19(1)(a).

Article 19(2): Reasonable Restrictions

The freedom guaranteed under Article 19(1)(a) is not absolute. Article 19(2) empowers the State to impose reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, and for preventing incitement to the commission of an offense. Accordingly, the government can make a law to restrict this freedom in the interest of the sovereignty and integrity of India, speech that harms national security, or that harms India’s relations with other countries.

Article 19(1)(g): Freedom of Profession, Occupation, Trade or Business

Article 19(1)(g) guarantees every citizen the freedom to practice any profession or engage in any lawful work. In the modern world, many commercial activities depend heavily on internet connectivity. Online businesses, digital payment systems, e-commerce platforms, freelancers, and professionals rely on uninterrupted internet access to conduct their daily tasks.

When internet services are suspended, online businesses suffer substantial losses, payments are interrupted, and economic activities are adversely affected. Therefore, internet shutdowns directly impact the constitutional freedom guaranteed under Article 19(1)(g).

Article 19(6): Restriction on Trade and Business

The freedom guaranteed under Article 19(1)(g) is not unrestricted. Article 19(6) allows the government to impose restrictions in the interest of the public to protect society.

Consequently, internet shutdowns are justified when they are necessary to protect public safety or maintain public order. However, such restrictions are imposed only when no less restrictive alternative is available, and they must be reasonable and proportionate.

Article 21: Right to Life and Personal Liberty

Article 21 guarantees that no person shall be deprived of life or personal liberty except according to the procedure established by law.

In today’s modern world, internet access plays an important role in accessing education, healthcare, employment opportunities, and banking services. An internet shutdown affects individuals’ ability to access these services and exercise personal liberty. For this reason, any restriction must follow a fair and lawful procedure established by law.

Judicial Interpretation and Case Laws

Anuradha Bhasin v. Union of India (2020)

In the landmark judgment Anuradha Bhasin v. Union of India, the Supreme Court held that the freedom of speech and expression under Article 19(1)(a) and the freedom to practice any profession or carry on trade or business under Article 19(1)(g) can be exercised through the internet.

The court held that internet shutdown orders must be published to ensure transparency and judicial review. Indefinite suspension is unconstitutional, and every shutdown order must satisfy the test of proportionality. The court also held that such orders must be periodically reviewed to examine whether such restrictions continue to be necessary.

Faheema Shirin R.K. v. State of Kerala (2019)

The court held that access to the internet is connected with the Right to Education and the Right to life and personal liberty under Article 21 of the Constitution. The Kerala High Court recognized that internet access has become important for gaining knowledge and exercising fundamental rights in today’s modern world. Unreasonable internet service suspension may violate fundamental rights guaranteed under the Constitution of India.

Foundation for Media Professionals v. Union Territory of Jammu and Kashmir (2020)

The Supreme Court held that a special committee must review the continuation of internet restrictions and ensure that they remain legally justified. Such restrictions must be periodically reviewed and cannot continue without proper reason. The court directed that restrictions affecting fundamental rights must be reasonable, necessary, and proportionate.

Critical Analysis

Internet shutdowns are one of the most debated measures employed by the government. The government has the authority to impose temporary restrictions to maintain public order and protect national security. In unavoidable situations involving terrorism and violence, temporary restrictions and suspension of internet service may help prevent rumors, misinformation, and hate speech that could provoke violence.

However, the frequency of internet shutdowns results in significant violations of constitutional rights. Articles 19 and 21 of the Indian Constitution protect the exercise of fundamental rights. The Supreme Court has clarified that internet shutdowns must follow the principles of legality, necessity, proportionality, and transparency. The balance between these principles and the government’s authority remains contested, particularly in cases where the government claims national security justification without providing detailed, specific evidence of imminent threats.

Furthermore, the lack of uniform application of shutdown criteria raises concerns about arbitrary exercise of power. Some states have imposed shutdowns during protests over economic or political grievances, raising questions about whether such restrictions truly serve national security or represent suppression of dissent. The 2024 Rules attempt to address these concerns through mandatory alternatives assessment and quicker judicial review, but enforcement and compliance remain critical challenges.

Conclusion

A fair balance between public safety and individual liberties is essential to protect constitutional rights and strengthen democratic governance in today’s digital world. The government exercises the power of internet shutdown for protecting national security and maintaining public order. In the landmark judgment Anuradha Bhasin v. Union of India, the Supreme Court clarified that such restrictions cannot be arbitrary, unreasonable, or disproportionate. There must be a balance with the protection of fundamental rights of citizens guaranteed under the Constitution of India. As internet access becomes increasingly central to education, employment, commerce, and civic participation, courts and policymakers must continue scrutinizing shutdowns to ensure they represent genuine necessities rather than tools of control.

Reference(S):

• Constitution of India, 1950.
• Indian Telegraph Act, 1885.
• Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
• Telecommunications Act, 2023.
• Telecom (Temporary Suspension of Services) Rules, 2024.
• Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
• Faheema Shirin R.K. v. State of Kerala, 2019 SCC OnLine Ker 1733.
• Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, (2020) SCC OnLine SC 453.
• Software Freedom Law Centre (SFLC.in), Internet Shutdown Tracker, https://internetshutdowns.in
• Internet Freedom Foundation (IFF), https://internetfreedom.in
• India Code, Ministry of Law and Justice, Government of India, https://www.indiacode.nic.in
• Indian Kanoon, https://indiankanoon.org
• Drishti IAS, Internet Freedom, https://www.drishtiias.com/daily-updates/daily-news-analysis/internet-freedom-1