Draft Telecom Bill: Why Internet Shutdowns in India May Continue To Be Excessive

In KS Puttaswamy vs Union of India, the Supreme Court ruled that a violation of privacy is justified as long as it passes the tests of legality, necessity, and proportionality. The test of necessity laid down by the Supreme Court, in this case, is “defined in terms of a legitimate State aim.” Since the Anuradha Bhasin judgment draws from this ruling, in the context of internet shutdowns, the first restriction implies that a shutdown measure can be exercised by the State if it is ‘necessary’ to achieve a legitimate aim. As per the Anuradha Bhasin judgment, for an internet shutdown to be proportionate in response, the authorities are required to: Determine the possible goal of imposing a shutdown See if an alternative mechanism exists to further the goal Then, the authorities are required to resort to the least-restrictive measure When asked about the implications of leaving out ‘proportionality’ from Clause 24, IFF’s Krishnesh Bapat opined that shutdown orders will still have to comply with the principle. “But it would have been much better if they had specifically included proportionality as a requirement, as a precondition to suspend internet services. They haven’t done that and so when an officer is actually applying this provision on the ground and directing internet service providers to suspend internet services, they’re only looking at the provision…they’re not thinking about whether it’s the proportional thing to do or not.