Constitutionality Of Internet Shutdown Orders Post-2024 Elections

Abstract

The persistent use of internet shutdowns as a tool of administrative governance in India presents a profound constitutional challenge, one that has been amplified in the wake of the 2024 general elections. This article undertakes a critical examination of the legal and constitutional validity of internet suspension orders, arguing that the current regulatory framework under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, often fails to meet the stringent standards of proportionality, necessity, and procedural justice mandated by the Supreme Court of India in the landmark case of Anuradha Bhasin v. Union of India (2020). The analysis begins by tracing the jurisprudential evolution of the right to internet access as an integral facet of the fundamental rights to freedom of speech and expression (Article 19(1)(a)) and to practice any profession, trade, or business (Article 19(1)(g)). It then deconstructs the 2017 Rules, highlighting procedural lacunae such as the lack of meaningful prior publication, the inadequacy of the review committee mechanism, and the vagueness of the grounds of "public emergency" and "public safety." The article posits that in the post-2024 political climate, where digital platforms are central to democratic discourse, accountability, and economic activity, the routine imposition of shutdowns represents a disproportionate and constitutionally suspect measure. Through a synthesis of judicial precedents, empirical data on shutdowns, and constitutional principles, this article concludes that a legislative and judicial course-correction is urgently required to align the state's power to impose internet blackouts with the foundational values of the Indian Constitution, ensuring that such extreme measures are used only as a last resort and not as a tool of first instance.

Introduction

The internet has irrevocably transformed modern society, evolving from a mere communication tool into a fundamental infrastructure that underpins democracy, the economy, education, and healthcare. In India, with over 900 million users, the internet is the lifeblood of the world's largest democracy, facilitating not only social interaction but also enabling the exercise of core constitutional freedoms. It is the primary platform for the dissemination of news, political debate, governmental accountability, and the conduct of business. Against this backdrop, India has also earned the dubious distinction of being the "internet shutdown capital of the world," consistently leading global charts in the number of state-mandated internet blackouts imposed annually.

The general elections of 2024, given their scale and the heightened political stakes, presented a critical juncture where the state's interest in maintaining public order intersected with the citizen's fundamental right to access information and communicate freely. The period surrounding the elections saw a spate of internet suspensions in various regions, ostensibly to prevent the spread of misinformation and maintain law and order. These actions bring to the fore a pressing constitutional question: To what extent can the state, invoking the grounds of "public emergency" or "public safety," curtail the digital rights of millions of citizens?

The legal architecture governing such shutdowns is primarily housed within the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, framed under the Indian Telegraph Act, 1885—a colonial-era legislation. The constitutional validity of this framework was put to test in the Supreme Court's seminal judgment in Anuradha Bhasin v. Union of India. The Court, in this ruling, unequivocally declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business, or occupation over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and Article 19(1)(g). It further laid down that any restriction on these rights must satisfy the triple test of being prescribed by law, necessary in a democratic society, and proportionate to the objectives it seeks to achieve.

This article argues that the implementation of internet shutdown orders in India, particularly in the sensitive post-2024 election period, frequently violates the constitutional principles enshrined in the Anuradha Bhasin judgment. The procedural and substantive safeguards mandated by the Supreme Court are often honored in the breach, leading to a regime of censorship that is arbitrary, overbroad, and disproportionate. The article will proceed in four parts. First, it will establish the constitutional foundation of the right to internet access, tracing its evolution in Indian jurisprudence. Second, it will provide a detailed analysis of the 2017 Rules, juxtaposing their provisions against the constitutional tests of proportionality and procedural due process. Third, it will critically examine the application of these rules in the contemporary context, with a specific focus on the post-2024 election environment, highlighting the gaps between legal doctrine and administrative practice. Finally, the article will conclude with recommendations for legal and policy reforms to create a more rights-respecting framework that balances legitimate state concerns with the inviolable core of fundamental rights.

I. The Constitutional Foundation: Internet Access as a Fundamental Right

The journey towards recognizing internet access as a fundamental right in India has been a progressive one, built upon a rich tapestry of judicial interpretation that has expanded the scope of Part III of the Constitution.

A. The Expansive Interpretation of Article 19(1)(a) and (g)

The cornerstone of this recognition is Article 19(1)(a), which guarantees the freedom of speech and expression. The Supreme Court has consistently held that this freedom is not confined to the mere act of speaking but includes within its ambit the right to disseminate information and the right to receive it. In the pre-internet era, cases like Express Newspapers v. Union of India established the significance of the freedom of the press, which is essentially the freedom of the people to be informed. The advent of the digital age necessitated a logical extension of this principle. The Supreme Court in Anuradha Bhasin explicitly held that "the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)." The Court reasoned that in the contemporary world, the internet is the most important means for people to exercise their right to freedom of speech and expression. Restricting internet access, therefore, amounts to a prima facie violation of Article 19(1)(a).

Similarly, Article 19(1)(g), which guarantees the freedom to practice any profession, trade, or business, is profoundly impacted by internet shutdowns. The digital economy encompasses a vast spectrum of activities—from e-commerce and fintech to gig economy workers and online tutors. An internet blackout brings these activities to a grinding halt. The Court in Anuradha Bhasin recognized this, stating that a suspension of the internet would have a direct bearing on the fundamental rights under Article 19(1)(g). The economic devastation wrought by shutdowns, particularly on small businesses and individuals reliant on digital platforms, underscores the deep interconnection between internet access and the right to livelihood.

B. The Integral Link to Article 21: Life and Personal Liberty

The right to internet access also finds a robust foundation in Article 21, which guarantees the right to life and personal liberty. The Supreme Court has interpreted Article 21 in the broadest possible terms, reading into it a host of unenumerated rights that make life meaningful and dignified. In K.S. Puttaswamy v. Union of India, the landmark case that recognized the fundamental right to privacy, the Court observed that the "right to privacy is an intrinsic part of the right to life and personal liberty under Article 21." The internet, as a platform for autonomous development, personal expression, and the maintenance of social relationships, is integral to the right to privacy and the right to lead a life of dignity.

Furthermore, internet access is crucial for the realization of other rights that flow from Article 21, such as the right to education and the right to health. The COVID-19 pandemic starkly illustrated how the internet became the primary channel for online education and telemedicine. A shutdown, therefore, does not merely restrict entertainment or social media; it can sever access to essential healthcare information, educational resources, and government welfare schemes, thereby directly impinging upon the right to life and personal liberty.

C. The Test of Proportionality: The Golden Bridge between Rights and Restrictions

No fundamental right is absolute. The state can impose "reasonable restrictions" on the rights under Article 19 on grounds such as sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency, or morality. However, the Supreme Court, in a series of judgments culminating in K.S. Puttaswamy and Anuradha Bhasin, has cemented the "proportionality standard" as the essential test for determining the reasonableness of any restriction.

The proportionality test consists of four cumulative components:

• Legality: The restriction must be imposed by a law, not by an executive fiat.

• Legitimate Goal: The law must pursue a legitimate state aim (e.g., public order).

• Suitability: The measure must be rationally connected to the legitimate goal.

• Necessity and Strict Proportionality: The measure must be the least restrictive alternative available to achieve the goal. The curtailment of the right must not be disproportionate to the benefits achieved.

It is against this formidable constitutional backdrop—the recognition of internet access as a facet of Articles 19 and 21, and the requirement of proportionality for any restriction—that the legality of internet shutdown orders must be evaluated.

II. Deconstructing the Legal Framework: The Telegraph Act and the 2017 Rules

The power to suspend internet services in India is not derived from a statute specifically designed for the digital age but from a colonial law, the Indian Telegraph Act, 1885. Section 5(2) of this Act empowers the government to take possession of any telegraph in occurrence of a "public emergency" or in the "interest of public safety." This inherently vague and broad power was exercised for decades without any specific procedural safeguards.

The 2017 Rules were introduced to create a structured process for ordering internet shutdowns. However, as the following analysis demonstrates, the Rules suffer from significant constitutional infirmities.

A. The Grounds for Suspension: "Public Emergency" and "Public Safety"

The 2017 Rules do not define the terms "public emergency" or "public safety." This lack of definitional clarity grants the executive an dangerously wide discretion. What constitutes a "public emergency"? Is a protest, a rally, or even the possibility of unrest sufficient to meet this threshold? The Supreme Court in Anuradha Bhasin noted this vagueness and directed the government to make the orders for suspension publicly available, subject to claims of privilege, so that they can be judicially scrutinized. However, the core problem remains: the undefined nature of the triggering conditions allows for pre-emptive and often speculative shutdowns, where the mere apprehension of trouble is used to justify a blanket suspension of rights. This falls foul of the "legality" requirement, as a law that grants such uncanalised power is susceptible to being struck down for vagueness.

B. The Procedural Mandate under the 2017 Rules

The Rules establish a procedure for issuing suspension orders:

• Issuing Authority: An order can be issued by the Secretary in the Union Ministry of Home Affairs, or by the Secretary of a state's Home Department. In "unavoidable circumstances," such an order can be issued by an officer of a lower rank, but it must be confirmed by the competent authority within 24 hours.

• Review Committee: A Review Committee must be constituted at the state and central levels. For a state order, the Committee consists of the Chief Secretary, Secretary Law, and Secretary Communications. The Committee is mandated to meet within five days of the order to assess its legality.

While these procedures appear structured on paper, their implementation reveals critical flaws that undermine due process.

C. Critical Lacunae in the 2017 Framework

• Lack of Prior Publication and Public Scrutiny: The Anuradha Bhasin judgment explicitly held that orders for internet shutdowns must be published. The Court reasoned that the public, whose rights are being curtailed, has a right to know the reasons for such a drastic action. This is essential for effective judicial review. In practice, however, shutdown orders are rarely made public proactively. They are often shrouded in secrecy, forcing citizens and civil society organizations to file Right to Information (RTI) requests or approach the courts to obtain a copy. This defeats the very purpose of publication and hampers accountability.

• The Ineffectiveness of the Review Committee: The review mechanism is arguably the weakest link in the procedural chain. The composition of the Committee, consisting entirely of government officials from the same executive branch that issued the order, raises serious concerns about its independence and objectivity. It is a case of the executive reviewing its own decision. Furthermore, the five-day window for the review is far too long in the context of a short-term shutdown, which may itself last only a few days. By the time the Committee meets, the shutdown may have already achieved its purpose and been revoked, rendering the review a mere post-facto formality. There is also a notable lack of transparency regarding the proceedings and the findings of these Committees.

• The Problem of Indefinite and Repeated Shutdowns: The 2017 Rules do not specify a maximum duration for a suspension order. While the Supreme Court in Anuradha Bhasin stated that an indefinite suspension is "impermissible" and that orders must be for a "limited duration," in practice, regions like Jammu and Kashmir have experienced prolonged periods of internet blackouts. The Rules also do not prevent the issuance of repeated, consecutive orders for the same situation, effectively allowing the executive to bypass the requirement for a single, time-bound order.

• The Absence of a Least-Restrictive-Measure Principle: The Rules do not explicitly require the authority to consider less restrictive alternatives before ordering a complete internet blackout. The proportionality standard demands that the state must first explore targeted measures, such as throttling bandwidth, blocking specific websites or social media platforms, or implementing geographic fencing of content, before resorting to a blanket shutdown that affects millions of innocent citizens. The failure to incorporate this principle into the statutory framework is a fundamental flaw.

III. The Post-2024 Election Context: A Critical Application

The period following the 2024 general elections serves as a critical case study to evaluate the application of the shutdown framework against constitutional principles. Elections are a time of heightened political activity, where the flow of information is paramount. The use of shutdowns during this period is particularly concerning for several reasons.

A. Shutdowns as a Tool to Manage Political Discourse and Protest

In the aftermath of the election results, instances of protests and public demonstrations were reported from various parts of the country. In several districts, the local administration responded by imposing temporary internet shutdowns. The stated reason, as per the few orders that were made public, was to prevent the spread of "rumours" and "misinformation" that could lead to a deterioration of law and order.

While maintaining public order is a legitimate state aim, the use of a blanket internet shutdown in this context is a classic example of a disproportionate response. It equates to silencing an entire town or district to pre-empt the potential actions of a few. This fails the necessity test. More targeted measures, such as increasing police deployment, using loudspeakers to counter misinformation, and issuing official clarifications through traditional and digital media, are less restrictive alternatives that should be exhausted first. A complete blackout prevents journalists from reporting on ground realities, citizens from verifying information, and activists from mobilizing peacefully—all of which are essential components of a functioning democracy.

B. The Chilling Effect on Democratic Accountability

The immediate post-election period is a time for the electorate to process the results, for winning and losing candidates to interact with their constituents, and for civil society to begin its analysis of the electoral process. Internet shutdowns during this period create an information vacuum that stifles democratic accountability. They prevent the media from investigating and reporting on allegations of electoral malpractices. They hinder political workers from coordinating and engaging in lawful political activities. Most importantly, they disenfranchise the citizenry by cutting them off from the national conversation, effectively treating them as subjects incapable of handling information, rather than as rights-bearing citizens.

C. The Economic Cost and the Violation of Article 19(1)(g)

The economic impact of a shutdown, even one lasting a few hours, is severe. According to various estimates, the Indian economy loses millions of dollars for every hour of a nationwide internet blackout. In the post-2024 context, localised shutdowns disrupted supply chains, halted digital payments, prevented freelancers and gig economy workers from earning their livelihood, and brought e-commerce to a standstill. This direct infringement of Article 19(1)(g) is often completely ignored in the administrative calculus that leads to a shutdown order. The economic harm to thousands of innocent individuals and businesses is rarely, if ever, weighed against the perceived threat to public order.

D. Judicial Response in the Post-2024 Scenario

The judiciary's role in the post-2024 period has been a mixed bag. While some High Courts have taken a strong stance, quashing shutdown orders that lacked sufficient justification, others have been more deferential to the executive's assessment of the law and order situation. This inconsistency highlights the urgent need for the Supreme Court to provide more granular guidelines on the application of the proportionality standard to internet shutdowns. The judiciary must move beyond a mere affirmation of the Anuradha Bhasin principles and actively enforce them, striking down orders that are pre-emptive, overbroad, and not based on concrete evidence of an imminent threat that cannot be contained by lesser means.

IV. The Path Forward: Recommendations for a Constitutionally Compliant Framework

To align the regime of internet shutdowns with the Constitution, a multi-pronged reform is necessary, involving legislative, judicial, and administrative action.

1. Legislative Reforms:

• A New Digital Rights Act: The most sustainable solution is to move away from the colonial Telegraph Act. A new parliamentary legislation, such as a Digital Rights Act, should be enacted to govern all aspects of digital access and its restrictions. This law must explicitly recognize access to the internet as a fundamental right.

• Amending the 2017 Rules: As an interim measure, the 2017 Rules must be amended to:

• Define "Public Emergency" and "Public Safety": Provide narrow, precise definitions to prevent misuse. The threshold should be set very high, such as an actual outbreak of violence that is widespread and uncontainable by other means.

• Incorporate the Least-Restrictive-Measure Principle: Mandate that a shutdown order must include a reasoned explanation as to why less restrictive alternatives were considered and found to be inadequate.

• Stipulate a Maximum Duration: Impose a statutory ceiling on the duration of any single shutdown order (e.g., 24 hours), beyond which a fresh order, subject to a more rigorous scrutiny, would be required.

• Strengthen the Review Committee: Include independent members, such as a retired judge and a technical expert, to ensure impartiality. The Committee should be required to meet within 24 hours of the order, and its reports should be made public.

2. Judicial Vigilance:

The Supreme Court should use its constitutional authority under Article 142 to issue comprehensive guidelines that operationalize the proportionality standard for internet shutdowns, filling the gaps in the 2017 Rules until the legislature acts.

High Courts and the Supreme Court must adopt a strict scrutiny standard when reviewing shutdown orders, refusing to grant undue deference to the executive's claims of a "law and order" threat. The burden of proving proportionality should lie squarely on the state.

3. Administrative Accountability:

• Mandatory Transparency: All shutdown orders, along with the reasons and the review committee's findings, must be proactively published on a dedicated government website within a few hours of being issued.

• Ex-Post Facto Impact Assessment: The government should be required to conduct and publish a post-shutdown assessment detailing the impact of the blackout on the economy, essential services, and the exercise of fundamental rights, and evaluate whether the stated objectives were achieved.

Conclusion

The constitutionality of internet shutdown orders in India stands on precarious ground. The chasm between the Supreme Court's robust jurisprudence in Anuradha Bhasin, which places the right to internet access at the heart of the fundamental rights chapter, and the routine, often arbitrary, administrative practice of imposing blackouts, is starkly evident. The post-2024 election scenario has further illuminated this disconnect, demonstrating how shutdowns are deployed as a blunt instrument of first resort, with little regard for the constitutional principles of proportionality, necessity, and procedural fairness.

The current legal framework under the 2017 Rules is structurally inadequate to protect citizens from the overreach of executive power. Its vague grounds, weak review mechanisms, and lack of transparency create a system that is prone to abuse. As India continues its journey as a digital republic, it must reconcile its administrative tools with its constitutional conscience. The internet is not a luxury; it is the modern public square, the marketplace of ideas, and the engine of the economy. To switch it off is to suspend fundamental rights en masse. A democracy that aspires to be vibrant and inclusive must have the confidence to manage dissent and misinformation through engagement and dialogue, not through the digital silence of a shutdown. Upholding the Constitution requires nothing less than a fundamental re-imagining of the state's power to disconnect, ensuring that the digital lights of democracy are never arbitrarily dimmed.

Here are some questions and answers on the topic:

1. How did the Supreme Court's judgment in the Anuradha Bhasin case establish a constitutional foundation for challenging internet shutdowns?

The Supreme Court's landmark judgment in Anuradha Bhasin v. Union of India (2020) provided a formidable constitutional foundation for challenging internet shutdowns by explicitly recognizing that the freedom of speech and expression and the freedom to practice any profession or carry on any trade or business over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and Article 19(1)(g) of the Indian Constitution. The Court authoritatively declared that the internet is a crucial means for asserting these fundamental rights in the digital age, and therefore, any restriction on its access must be considered a restriction on the rights themselves. Furthermore, the Court fortified this position by applying the stringent "proportionality standard" as the essential test for evaluating the legality of any such shutdown. This standard mandates that any restriction must be pursued through a law, must serve a legitimate state aim, must be a suitable means to achieve that aim, and must be the least restrictive measure possible, ensuring that the harm caused to the right is not disproportionate to the intended benefit. By doing so, the judgment shifted the legal burden onto the state to justify every internet shutdown against these rigorous criteria, moving beyond mere executive discretion to a framework of constitutional accountability.

2. What are the key procedural shortcomings in the Temporary Suspension of Telecom Services Rules, 2017, that lead to their potential misuse?

The Temporary Suspension of Telecom Services Rules, 2017, contain several critical procedural shortcomings that render them susceptible to misuse by the executive authority. The most significant flaw is the inherent vagueness and lack of precise definition for the triggering conditions of "public emergency" and "public safety," which grants the government an overly broad and largely unchecked discretion to impose shutdowns based on mere apprehension rather than a demonstrable, imminent threat. Another major deficiency lies in the ineffectiveness of the mandated Review Committee, which is composed entirely of government officials from the same executive branch that issued the suspension order, thereby lacking genuine independence and objectivity. Compounding this is the rule that allows the committee to meet within five days of the order, a period often longer than the shutdown itself, which reduces the review to a meaningless post-facto ritual. Additionally, the rules suffer from a persistent lack of transparency, as orders are rarely published proactively, violating the Supreme Court's direct instruction and denying citizens the knowledge necessary to challenge the curtailment of their rights. Finally, the framework does not explicitly incorporate the principle of using the least restrictive alternative, allowing for blanket blackouts even when targeted measures like blocking specific websites or services could suffice.

3. Why are internet shutdowns in the post-2024 election period considered a particularly severe threat to democratic principles?

Internet shutdowns in the period following the 2024 general elections are considered a particularly severe threat to democratic principles because they strike at the very core of democratic engagement and accountability during a critically sensitive time. Immediately after an election, the democratic process continues through the analysis of results, the investigation of potential irregularities, the formation of new political alignments, and the interaction between representatives and their constituents. Imposing an internet blackout during this phase creates an information vacuum that stifles public discourse, prevents journalists from reporting on ground realities and allegations of malpractice, and hinders political actors and civil society from engaging in lawful and essential political activities. It effectively treats the citizenry as a passive, untrustworthy entity incapable of handling information, rather than as active participants in a democracy. By severing the primary channel of communication, the state not only suppresses potential protest but also undermines the very accountability mechanisms that ensure the legitimacy of the electoral process itself, fostering an environment of opacity and control that is antithetical to democratic norms.

4. How does the principle of proportionality, as defined by the Supreme Court, apply to the state's use of internet shutdowns?

The principle of proportionality, as defined by the Supreme Court, applies as a multi-stage test that the state must conclusively pass to legally justify an internet shutdown. First, the restriction must be "prescribed by law," meaning it must have a clear basis in a duly enacted statute or rule, which in this case is the Telegraph Act and the 2017 Rules. Second, the law must pursue a "legitimate goal," such as preventing imminent violence or a genuine threat to public order, and not be used for arbitrary or mundane purposes. Third, the measure must be "suitable," meaning there must be a direct and rational connection between imposing a blanket internet shutdown and achieving the stated goal of quelling the emergency. The most critical stage is the fourth, which encompasses "necessity" and "proportionality stricto sensu." Here, the state must demonstrate that a complete internet blackout was the "least restrictive alternative" available and that no other, more targeted measures—such as increased policing, curfews, bandwidth throttling, or blocking specific social media platforms—could have effectively addressed the threat. The state must prove that the severe curtailment of the fundamental rights of millions of citizens is not disproportionate to the actual benefits achieved in maintaining order.

5. What concrete legal and procedural reforms are necessary to align the internet shutdown framework with constitutional mandates?

To align the internet shutdown framework with the constitutional mandates laid down by the Supreme Court, a series of concrete legal and procedural reforms are urgently necessary. The most foundational reform would be to enact a new Digital Rights Act that moves beyond the colonial-era Telegraph Act and explicitly recognizes and defines the right to internet access, thereby creating a modern, rights-centric legal foundation. Pending such a law, the existing 2017 Rules must be amended to incorporate precise and narrow definitions of "public emergency" and "public safety" to prevent their arbitrary application. The review process must be overhauled by reconstituting the Review Committees to include independent members, such as a retired judge and a technical expert, and mandating that they convene within 24 hours, not five days, of an order being issued. The principle of the least restrictive measure must be explicitly written into the law, requiring authorities to provide a reasoned justification for why alternatives were deemed insufficient. Furthermore, a statutory maximum duration for any single shutdown order, such as 24 hours, must be imposed to prevent indefinite or rolling blackouts. Finally, a strict and mandatory transparency protocol must be established, requiring all shutdown orders and review committee reports to be proactively and promptly published on a public portal to enable genuine judicial and public scrutiny.

Disclaimer: The content shared in this blog is intended solely for general informational and educational purposes. It provides only a basic understanding of the subject and should not be considered as professional legal advice. For specific guidance or in-depth legal assistance, readers are strongly advised to consult a qualified legal professional.