* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
India had the most number of internet shutdowns in 2020 – only ceding the crown to Myanmar last year. But an interim court order directing a state government to find other ways to prevent cheating in examinations could dissuade other states from shutting down the internet quite so often.
Tanmay Singh is the Litigation Counsel at the Internet Freedom Foundation, a digital rights non-profit organisation in India.
Last week, the Calcutta High Court stayed an order of the West Bengal government completely suspending internet services in large parts of the state for eight days. The order did not record detailed reasons for the suspension. But the media were quick to point out that the dates and times of the shutdown coincided with board examinations for Class 10 students in the state. The problem? Preventing students from cheating in examinations is not a legally recognised ground for suspending internet services.
Courts in India have maintained that the use of internet falls within the fundamental rights and freedoms guaranteed by the nation’s Constitution, and that our fundamental rights are a serious matter. Accordingly, any restriction of fundamental rights is a serious matter, and can only occur where absolutely necessary. Still, India was responsible for 70% of global internet shutdowns in 2020. This means that India’s internet shutdown footprint in 2020 was more than twice as much as the rest of the world combined. In 2021, Myanmar overtook India in imposing internet shutdowns, probably as a by-product of a military coup. In just the three years between 2019-2021, Indians saw a total of almost 15,000 hours of internet shutdowns, which cost the economy some $4.7 billion, according to estimates by Top10VPN.
When the West Bengal government’s suspension order was challenged in court by the Internet Freedom Foundation, the government admitted that the order was to prevent cheating and unfair methods in the board examinations. The government also produced internal communications that showed its concerns over cheating.
This was significant, because the High Court could now address the question of whether state governments can suspend the internet to enable the proper conduct of exams. Beyond the conditions that must exist for free speech to be reasonably restricted under the Constitution, Indian law recognises only two circumstances that can justify an internet shutdown - public emergency and public safety.
It would be a stretch to say that a handful of students trying to cheat in an exam can threaten public safety or cause a public emergency. Nonetheless, we have seen examinations everywhere in the country accompanied by internet shutdowns. A possible reason for this is that governments find themselves equipped with a hammer in internet shutdowns, and have begun to see every problem, including potential cheating in exams, as a nail.
The Calcutta High Court found that the state has “various other means to prevent the use of unfair means” in examinations, and accordingly, that suspending internet services fails the test of proportionality. The High Court therefore ordered a stay on the internet suspension, and directed the government to use “other appropriate effective steps” to prevent cheating.
So what does this mean for Indians suffering internet shutdowns elsewhere on the government’s whim? Procedurally, this is an interim order, and subject to the final decision of the Court. The Court’s view may well change after hearing arguments from both sides. However, until then, at least the West Bengal government will not be able to issue suspension orders in the context of examinations. Moreover, the order will potentially dissuade other states from switching off the internet at will.
For example, just within the last six months, we have seen the government of Rajasthan suspend internet services for nearly the entire state on account of examinations. This is in spite of an undertaking by the government before the Rajasthan High Court that it would stop suspending internet services for examinations.
This determination by the Calcutta High Court, that internet suspension is a disproportionate means to prevent cheating, will no doubt be useful to lawyers and activists in Rajasthan, and in other states of India, who are engaged in trying to secure the right to unfettered internet access for all.
This interim order of the Calcutta High Court will not transform the landscape of internet access jurisprudence in India overnight. But it will help reduce some of the impunity and frivolity that have marked internet suspension orders issued by state governments in the country.
