Although Indian Courts have adopted a structured five-prong proportionality test in cases such as Modern Dental College [2016] and KS Puttaswamy [2017] to determine the validity of the State’s restriction on constitutionally protected rights, they have consistently failed to apply this test to citizens’ right to continuous internet service. Consequently, indefinite, state-wide, and absolute internet shutdowns abound.

The right to freedom of speech and expression using the internet was read into Article 19(1)(a) of the Constitution in Anuradha Bhasin [2020]. Usage of the internet, therefore, has been constitutionally protected by the Indian Apex Court. Curtailment of the internet is also considered violative of both Article 19(1)(g) of the Constitution, which protects freedom of trade and commerce; and Article 21, as the right to access continuous internet services is considered an extension of the fundamental right to life (Faheema Shirin R.K. v State of Kerala (2019)).

The Supreme Court of India has always held that a rights-limiting measure should bear a proportionate relationship to the right, in this case, the derivative rights to access Internet services (see, for a global perspective, Amnesty International Togo (2020)). However, it is only recently in Modern Dental College [2016] and in the case of KS Puttaswamy [2017] that the court has adopted a structured four-point proportionality test to determine the validity of a rights-restricting measure. A fifth prong was added by the court in Gujarat Mazdoor Sabha [2020] and Ramesh Chandra Sharma [2023].

This (now) five-point proportionality test consists of the following elements: (1) a measure restricting a right must have a legitimate goal; (2) the measure must constitute a suitable means of furthering this goal; (3) there must not be any less restrictive but equally effective alternative; (4) the measure must not have a disproportionate impact on the right holder; and (5) there should be sufficient safeguards against the abuse of the interference with the fundamental right.

The proportionality test was first applied in the context of Internet shutdowns in Bhasin. In Bhasin, the Court read the right to use the internet into Article 19(1)(a) and 19(1)(g). Since speech, expression, trade and commerce over the internet was now deemed to be constitutionally protected,  the Court held that each order restricting or shutting down internet access must satisfy each element of the aforesaid five-pronged test to be deemed proportionate, and, co-extensively, constitutional [152(d)].

However, even after the use of the proportionality standard was established to test the legality and constitutionality of an internet shutdown in India, shutdowns are often imposed for indefinite periods of time; as a quick-fix solution to minor law and order concerns like cheating in examinations; and, across disproportionately large geographical areas. Additionally, they are absolute, i.e., they restrict internet access through broadband and mobile data, thereby preventing internet access through any and all means.

For example, in the State of Manipur, where clashes between indigenous communities led to widespread violence, the State Government imposed an internet shutdown that lasted more than 200 days in 2023. A state-wide, absolute (both mobile data and broadband) shutdown continued even after there was a clear and admitted de-escalation of the situation, and sporadic violence that was limited to the district/local level.

All of which to say – the Indian State continues to impose unlawful, unnecessary, and disproportionate internet shutdowns, constraining persons aggrieved by these shutdowns to routinely approach the High Court and Supreme Court to challenge their disproportionality. In Udaipur Chamber of Commerce and Industry (2021), for instance, a Rajasthan-based trade association approached the High Court to challenge shutdowns imposed to prevent cheating in state examinations. They cited irreparable business losses due to the protracted and frequent nature of these shutdowns. Filed in 2021, the case has still not been decided.

Similarly, in Chongtham Victor Singh (2023), Aribam Dhananjoy Sharma Paojel Chaoba & Ors v State of Manipur [2023], Foundation for Media Professionals v Union Territory of Jammu and Kashmir [2020], and SFLC v State of Arunachal Pradesh [2022], claimants approached courts to challenge shutdowns that were wholly disproportionate. However, despite well-settled precedent, the courts failed to test these against the proportionality standard, as is evinced from the following orders – here and here.

As a result of the Court’s indecisive approach, state governments now wield unchecked power to impose internet shutdowns at the slightest provocation. This has dire consequences: it disrupts lives, halts livelihoods, and stifles free speech and a free press. Without urgent judicial intervention to enforce the principle of proportionality, these shutdowns will persist unabated, wreaking havoc on the nation’s social and economic fabric. The judiciary must act decisively and consistently to safeguard citizens’ fundamental rights from disproportionate restrictions.

See also:

Curtains over Connectivity: A Peek Behind India’s Opaque Internet Shutdown Orders