The world’s largest democracy is far and away the most brutal censor of the Internet. The government of India has taken the extraordinary step of shutting down internet service across districts or entire states more than 83 times in 2020, despite the shuttering of society due to the epidemic.
Already in 2021, the internet was shut off in several districts in Haryana in light of the farmers’ protests against three new agricuture laws.
These shutdowns have been imposed for reasons connected with the suppression of public demonstrations and the keeping of public order, but also for less exigent purposes. In October, for example, the entire population of 15 districts of Arunachal Pradesh were deprived of all mobile internet services due to the administration of competitive public service employment examinations.
The same month, a shutdown of all social media and mobile data service was imposed in Rajasthan, after leaders of the Gujjar community threatened mass demonstrations in a dispute with the state government over employment reservations for their “backward class.” (All primary data on Indian internet shutdowns is compiled by SFLC.in, which runs world’s first real-time tracker tracking internet shutdowns.)
A disturbing truth
We expect despotic regimes, from China to Belarus, to use their power over telecommunications to spy on and control their populations. But when democratic societies operating under the rule of law take up the habit of destroying citizens’ ability to communicate and inform themselves in order to achieve disproportionately minor short-term objectives, a different and ultimately more disturbing truth is revealed.
The legal basis for challenging internet shutdowns in India is solid but does not result in relief for the citizens despite several rounds of litigation. In a landmark case last January, the Supreme Court recognised that the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution, and the right to carry on any trade or business under 19(1)(g), using the medium of internet is fully protected.
Although the court held that suspending internet services indefinitely is impermissible, this was not applied to the shutdown in Kashmir that had been continuing for more than five months at that time. The only relief granted was a direction given to the state to review all orders suspending internet services forthwith.
In view of the fundamental nature of the rights at stake, the court has also emphasised the requirement of transparency, mandating that shutdown orders be published. Nonetheless, most of the orders are not published nor is the public informed of any imminent shutdown. Most districts in Kashmir continue to have merely 2G access since March 2020, further complicating lives during the pandemic.
The government’s 2017 rules concerning “Temporary Suspension of Telecom Services” provide for a review of shutdown orders every 15 days. But the review committee is staffed entirely by officers of the executive and continues to extend orders every fortnight. In 2020, internet service were completely for 213 days shut down throughout Jammu and Kashmir.
This gap between legal principle and government performance is wide enough to have swallowed the fundamental rights and daily necessities of tens of millions of Indian citizens. This abyss can be attributed to the authoritarian impulses of the various state governments, or to the failure of the Supreme Court to implement its pronouncements.
But when Indian government power is used to turn off the Internet to protect against exam cheating – a phenomenon that has also been seen in East African democracies, for example – another lesson is also being taught that wealthy and secure democracies too should learn.
Missing the wood for the trees
The set of technical arrangements we call the internet has become in the blink of an eye the external nervous system of the human race. In less than half a generation, this species-wide nervous system has established itself at the core of every society’s functional physiology: its payment systems, educational institutions, forms of news and propaganda distribution, and the daily work and love lives of entire populations. The absolute importance of connection to thatnervous system far exceeds the social and legal mechanisms in place for its protection.
The language of “internet access as a human right” captures the magnitude of the concern, but in doing so it risks describing the forest while forgetting about the trees. If systems of examination cannot be secured without shutting down the net, it’s the examinations that have to change, and with them educational and public employment practices that were handed down to us by the 19th century. Telecommunications service providers have long been treated as public utilities for the purpose of rate regulation, but their role as private actors controlling exercise of the most basic of civil rights requires a complete re-conception of their legal duties and to whom those duties are owed.
The internet is now simultaneously treated as the most essential of public spaces and a luxury product that can be denied to consumers through comfortable negotiation between government officials and private companies. Under the First Amendment, the US Supreme Court found in the 20th century that the streets and parks belong to the people, that is, government may exercise ownership of public space on behalf of the public, but when the people want to exercise their rights of speech and assembly, it is not for government to assess their purposes and give permission only when it deems those purposes acceptable.
The kill switch
Across the span of democratic societies – those which recognise in the people individually and collectively the right of self-government – the net too, whatever the legal rights and powers granted to “owners” of its component pipes and switches, must ultimately belong to the people. Severing them from one another through the amputation of their shared nervous system should be no more permissible than the dismemberment of citizens’ bodies themselves.
This is why shutdowns are not merely a cause of economic loss, as suggested by the Brookings report that they are costing the world economy roughly $2.5 billion a year or a matter of the petty dictatorialism of state police, or of the too-comfortable relations between government and telecommunications oligopolists.
The “kill switch” held jointly by equipment operators and government officials is one that kills not merely some platform smartphone applications, but the very idea of government of the people, by the people, and for the people. In the end, the disputes about internet shutdowns raise basic questions about the future of human life itself.
Eben Moglen is a professor of law and legal history at Columbia Law School.
Mishi Choudhary, a technology lawyer in New York and New Delhi and Managing Director at Mishi Chowdhary and Associates. She is the founder of the Software Freedom Law Center’s India chapter, which has since 2012 maintained an Internet Shutdowns tracker for India.