Mobile Network Shutdowns Could Be Human Rights Violations

Since the Bharatiya Janata Party-led NDA  government came to power at the Centre in May 2014, there have been at least three high-profile instances of mobile network and Internet shutdowns around the country – two in Gujarat (September 2014; September 2015) and one in Jammu and Kashmir (September 2015). In Gujarat, these were effected to forestall Patidar protestors from using the network to regroup and reorganise in the aftermath of police action against their protests, and so weaken the ‘resistance’; in J&K, the three-day Internet suspension was pre-emptive, to ensure popular anger in the Valley against the beef ban did not snowball into a protest movement.

The attractiveness of such measures for governments anxious to quell protest lies in the ubiquity of the mobile phone and the cheap mode of communication it offers to ordinary citizens. However, the very ubiquity of the mobile phone means that during a shutdown, both legitimate and allegedly-illegitimate activities are affected. Without knowing the victimised proportion of each, it’s harder to argue that the ends justify the means. It’s not perfectly clear if the shutdowns work by preventing ‘bad’ or by preventing both ‘good’ and ‘bad’ indiscriminately. It’s the dangers of this indiscriminate nature that could invite suspicions of such shutdowns being human-rights violations – if only because people have been becoming increasingly reliant on mobile phones for many essential as well as emergency services.

A report put out by the Institute for Human Rights and Business (IHRB), an international think-tank, calls attention to such violations especially since the technology exists to allow law-enforcement authorities to target specific individuals (by suspending SIM cards or blocking numbers via TSPs). One of the report’s contentions – relevant to when authorities frequently shut down mobile networks – is that what should be a last-resort technique is evolving into a lazy, first-response measure. The practice also contravenes one of the UN’s new Sustainable Development Goals: “Increase access to information and communications technology and strive to provide universal and affordable access to the Internet in least developed countries by 2020.”

Who uses mobile phones and for what? The biggest use case is with friends and family using cell phones to communicate good news – especially helpful during times of distress – and bad. They’re also used to access banking services, emergency services and the social media, and in information-poor environments like in the rural hinterland, to stay updated with essential government services and weather updates. Mobile-network shutdowns are also harmful for small businesses and impact TSP revenues. However, in the event of a shutdown, those who effect it are either not concerned about the consequences for legitimate activities or there isn’t a mechanism that allows them to reflect that concern.

As shutdowns become more frequent, the affected stakeholders are beginning to grapple with the fact that there are few legal sanctions holding the authorities back. Though the Telegraph Act (1885) and the Telecom Regulatory Authority of Indian Act (2000) specify the circumstances in which the government can submit shutdown requests to TSPs, there is no requirement that an independent body be constituted to approve or reject shutdown requests – in effect, no layer between the government and TSPs (in the USA, the Department of Homeland Security is required to ensure a shutdown request it’s going to sign off on is absolutely necessary). Nor does the law specify the circumstances in which TSPs can discuss requests or claim compensation for loss of revenue – which are especially important because the requests are mired in claims of “national security” – or for citizens to engage with a grievance redressal mechanism. Though these concerns apply to ISPs, the Information Technology Act (2000) is more cognisant of the effects of Internet blockades.

Both Acts are concerned with regulating the provision and availability of network, not their unavailability. In other words there’s no ‘non-natural disaster response’ legislation that explicitly defines the extent to which state actors can interfere with the provision of public services to quell unrest (like the DHS is held in check by Standard Operating Procedure 303) – though to be fair this is a recent consideration. In fact, the statement could include information-access blockades in general – such as the NDA government’s ham-fisted attempts at enforcing a #PornBan. At one point, officials appeared so conflicted over being forced to retract the blanket-ban that they asked ISPs to decide if a website contained child-porn or not – while, thanks to the lack of transparency, ISPs would’ve preferred one clear instruction from one trustworthy source.

As former TRAI chief Rahul Khullar noted, “it’s perfectly legitimate” for the state to impose mobile network shutdowns, “but you can always question the wisdom of such actions”. But outside of the fourth estate, is there a meaningful way to do this?

The IHRB report envisages that an independent body could be a substitute for such legislation, and that it also be empowered to review the necessity of shutdowns in the first place. After all, telecommunications is not the sole mode of communication – it may be dominant, but not so for a group of people intent on disrupting the peace. In the Dadri incident, in fact, temple loudspeakers were used to incite a lynch mob. Without knowing if shutting mobile networks down will be truly effective, the authorities shouldn’t be doing so.

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Camilla Wood

UK based Legal Aid Lawyer

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