Centre for Internet & Society

Legislative backing is being appropriated to normalise communication shutdowns.

The article by Aayush Rathi and Akriti Bopanna was published in the Hindu on August 29, 2019.

On August 4, around midnight, Jammu and Kashmir was thrust into a near total communication shutdown. In the continuing aftermath of the dilution of Article 370, cable television, cellular services, landline and Internet and even the postal services have been rendered inoperational. Even hospitals and fire stations have not been spared. While law enforcement personnel have been provided satellite phones, locals are having to queue up outside designated government offices and register the numbers they want to call. The blackout is all encompassing.

The erstwhile State of Jammu and Kashmir is accustomed to the flicking on of the “Internet killswitch”, but this indiscriminate embargo is unprecedented. The blocking of multi-point/two-way communication is quite frequent in Kashmir, with close to 55 instances of partial or complete Internet shutdowns being recorded just this year. Of the 347 cases of shutdown that have been imposed in India since 2012, 51% have been in Kashmir. The blocking of one-way communication media, such as cable television, however, is new. Even the measures adopted during the Kargil war in 1999 stopped short of blocking telephone lines.

Appearing for the incumbent government on a petition challenging the communications shutdown in Kashmir, the Attorney General of India, K.K. Venugopal, made the necessary-for-law-and-order argument.

However, recent research by Jan Rydzak looking exclusively at network shutdowns in India has shown no evidence backing this claim. On the contrary, network shutdowns have been shown to compel actors wanting to engage in collective action to substitute non-violent mobilisation for more violent means as the latter requires less coordination.

In dubious company

Network shutdowns have a limited and inconsistent effect on even structured, non-violent protests. Cross-country comparative research indicates that the shutdown of communication for achieving objectives of social control is usually the riposte of authoritarian regimes. The shroud of secrecy it creates allows for further controversial measures to be effected away from public scrutiny. Authoritarian regimes masquerading as liberal democracies are following suit. In 2016, the Turkish government had ordered the shutdown of over 100 media companies in the aftermath of a failed military coup. Earlier this year, Joseph Kabila’s government in the Democratic Republic of Congo had shut down Internet and SMS services for three weeks under the pretext of preventing the circulation of fake election results.

Mr. Venugopal further reassured the Supreme Court that the residents of Kashmir would experience the least amount of inconvenience. This line assumes that the primary use of telecommunication networks is for supposedly banal interpersonal interaction. What is forgotten is that these networks function both as an “infrastructure” and as medium of communication. Impacting either function has dire and simultaneous consequences on its use as the other. As an infrastructure, they are akin to a public utility and are foundational to the operation of critical systems such as water supply and finance.

In the Kashmir Valley, over half the business transactions are said to happen online. The payment of wages for the government-run employment guarantee scheme for unskilled manual labour is almost entirely made electronically — 99.56% in Jammu and Kashmir. The reliance on the Internet for bank-related transactions has meant that automated teller machines and banks are inoperative. What is telling is that the increasing recourse to network shutdowns as a law and order tool in India is also happening simultaneously with the government’s digitisation drive. Information flows are being simultaneously facilitated and throttled.

Ambiguous backing

Moreover, communication shutdowns have ambiguous legal backing. One approach imposes them as an order passed under Section 144 of the Code of Criminal Procedure. A colonial relic, Section 144 is frequently used for the imposition of curfew in ‘sensitive’ areas as a preventive measure against public demonstrations. This approach lacks procedural accountability and transparency. Orders are not mandated to be publicly notified; they do not identify the duration of the lockdown or envision an appeal mechanism.

Perhaps realising these challenges, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, notified under the Telegraph Act, do incorporate a review mechanism. However, reviewing officials do not have the authority to revoke a shutdown order even if it is deemed illegal. The grounds for effectuating any shutdown also have not been elaborated other than for ‘public emergency’ or ‘public safety’ — both these terms are undefined. Legislative backing, then, is being appropriated to normalise, not curb, communication shutdowns. Tellingly, the owner of an Internet service provider in Kashmir pointed out that with Internet shutdowns becoming so common, often the shape that an order takes is of a call from a government official, while the procedural documentation follows much later.

Treated as collateral damage in imposing communication blackouts are the fundamental freedoms of speech and expression, trade, and also of association. The imposition of Section 144 along with the virtual curfew is designed to restrict the freedom to assemble peacefully. Such preemptive measures assume that any assembly will be violent along with negating the potential utility of technological means in maintaining social order (such as responsible digital journalism checking the spread of rumours).

Most critically, this enables a complete information vacuum, the only salve from which is information supplied by the suppressor. Of the days leading up to August 5 and the days since, sparse information is publicly available. Local newspaper outlets in Kashmir are inoperational. This lack of information necessarily precludes effective democratic participation. Beneath the national security sentiments, a key motivation for network shutdown presents itself: that of political censorship through the criminalisation of dissent.

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