India ordered to review suspension of internet services in Kashmir

The Supreme Court of India found the indefinite suspension was 'impermissible'.
Written by Campbell Kwan, Contributor

The Indian government has been ordered by the Supreme Court to undergo a review of its suspension of internet services in the union territory of Jammu and Kashmir.

In its judgment, the court came to the conclusion that the indefinite shutdown of internet, mobile phone, and landline services in the union territory is illegal. 

Since August last year, internet, mobile phone, and landline services in Jammu and Kashmir have been shut down after the government came to the decision to remove the territory's partial autonomy. 

Throughout the hearing, the plaintiffs argued that such restrictions impacted the right to free speech of individuals and impinged on their right to trade. They added that at the time of the internet shutdown, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp "should and could have been passed", much like how India handled its prohibition of human trafficking and child pornography websites.

"While imposing restrictions, the rights of individuals need to be balanced against the duty of the state to ensure security. The state must ensure that measures are in place that allow people to continue with their life, such as public transportation for work and schools, to facilitate business," the plaintiffs' senior counsel submitted.

The court did not rule for internet access to be restored in the union territory immediately however, but it did come to the conclusion that internet access is guaranteed under the Constitution due to freedom of speech and expression. 

It added that the suspension of internet access was a "drastic measure" that could only be considered by the state only if it was necessary or unavoidable, clarifying that an indefinite shutdown of internet services was both excessive and unconstitutional, even if "the government is entitled to restrict the freedom of speech and expression guaranteed". 

"There is no indication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible," the court said.

As part of the review, the Indian government will be required to present findings on whether the suspensions are still in compliance with the the country's telecommunications legislation, as well as look into the question of whether they are still proportionate.The findings must be presented by the end of this week.

The court also ordered authorities to review all such curbs in Jammu and Kashmir immediately.

Separately, various organisations have come together to call on India to reconsider its proposed amendments to its intermediary liability rules.

In an open letter to India's IT Minister Ravi Shankar Prasad, representatives from organisations such as Google, Twitter, Internet Society, and Mozilla, among others, expressed to the Indian government that if it goes ahead with its proposed amendments, it could "put the security of the Internet and its users, and the future of a digital India at greater risk".

The Indian government drafted amendments [PDF] to its intermediary liability rules in late December 2018 that, if enforced, would require intermediaries -- this includes small and medium businesses as well as technology giants like Facebook and Google -- to proactively monitor and filter their users' content and have the capability to trace the originator of information to avoid assuming full liability for their users' actions. 

"By tying intermediaries' protection from liability to their ability to monitor communications being sent across their platforms or systems, the amendments would limit the use of end-to-end encryption and encourage others to weaken existing security measures," the representatives wrote in the letter.

"With end-to-end encryption, there is no way for the service provider to access its users' decrypted content. This means that services using end-to-end encryption cannot provide the level of monitoring required in the proposed amendments ... with the ability to monitor user content tied to intermediaries' protection from liability, companies in India may feel compelled to weaken strong encryption on their services or fail to implement the technology at all."

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