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October 19, 2017

Making the Internet disappear

  • In the 21st century, the Internet has assumed an increasingly important place in our lives. Many of the fundamental rights guaranteed by our Constitution — the freedom of speech and expression, the freedom of association, the freedom of trade — are exercised in significant part on the Internet. But the growing importance of the Internet in personal life, as well as its growing use to challenge governmental authority, has led to a backlash, where governments attempt to reorient the relationship between the individual and the state in their favour by controlling the Internet.
  • In India, one ubiquitous form of such control is the “Internet shutdown”. Just like the government may cut-off water supply to prevent protests, the government may — and actually does — cut-off Internet access for purposes as comically diverse as preventing violent protests (Kashmir) and cheating in exams (Gujarat).
  • In an article published in May 2016, Apar Gupta and Raman Chima pointed out that with 37 Internet shutdowns, triggered by 11 States over a two-year period, India had attained the dubious distinction of joining Iraq in “reporting the highest number of incidents involving government mandated shutdown of Internet access” — with serious consequences both for civil rights, and for business. In another article, published just two weeks ago, Nakul Nayak pointed to 55 Internet shutdowns in 2017 alone. The sheer ubiquity of Internet shutdowns makes it clear that it is being used as a routine card in the ever-expanding “law and order” toolkit of the state. To return to the analogy with which this essay began, think of a situation where the standard — and primary — response of the government to a potential law and order problem was to immediately cut-off water access for an entire area, indiscriminately.

The legal angle

  • For a long time, the legal basis of Internet shutdowns was unclear. A few years ago, the High Court of Gujarat invoked Section 144 of the Code of Criminal Procedure (CrPC) to uphold an Internet shutdown. Section 144, which has its roots in the colonial-era British police-state, authorises prohibitory orders to “prevent…. obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
  • Section 144 is primarily used to secure an area from damage or harm in the case of a potential or actual law and order disturbance, and more notoriously, to ban protests or other forms of political action in places such as central Delhi.
  • A key flaw in the Gujarat High Court’s decision, however, was its failure to understand that the provisions of the CrPC cannot directly be transposed into the online world. In the way that it is commonly used in the physical world, Section 144, at its worst, only ends up placing certain specific areas beyond the bounds of large assemblies and associations, and always for a temporary period of time. An Internet shutdown, however, takes away an entire — and critical — platform of communication and work altogether.
  • In an attempt to adjudicate a fair constitutional balance between the fundamental rights of individuals on the one hand and the interests of the state in maintaining law and order on the other, the Supreme Court has often insisted that the state’s rights-infringing action must be “proportionate”: that is, there ought to be no greater invasion of the individual’s right than what is strictly necessary to achieve the state’s goal.
  • Internet shutdowns, clearly, fail the test of proportionality. This is because they are indiscriminate, in both whom they target (that is, everyone within a defined area, whether potential disruptors of law and order, or the entirely innocent), and the manner in which they do so (cutting-off access to the entire Internet, which includes a vast majority of entirely bona fide and legal uses of the Internet).

More stringent rules

  • Perhaps realising that Section 144 of the CrPC was a poor peg on which to hang Internet shutdowns, in August 2017, the government notified certain “Suspension Rules”, taking the cover of yet another colonial law — the Telegraph Act of 1885. While these rules were meant to bring transparency and clarity to the procedure through which Internet services were suspended, they remain deeply problematic in themselves. As Nayak points out, there was no transparency or democratic debate when these rules were framed; their scope is frighteningly vast, and includes phone calls as well as Internet calls; and there is no provision that envisages a lifting of the shutdown after any specific time. But perhaps what is most important about these rules is the virtual non-existence of mechanisms of accountability. After designating certain officers who can authorise Internet shutdowns, the rules only require a “review committee”, whose scope is limited to decide whether the declaration was valid or not.
  • Even if we grant that in certain exceptional situations, such as a public emergency, the government may be justified in temporarily blocking access to certain parts of the Internet, this is a power that is liable to all kinds of misuse, and must be tempered with stringent safeguards. Just like the police must present an individual before a court within 24 hours if they want to keep her in custody, the government must, by law, subject Internet shutdowns to judicial scrutiny as soon as reasonably possible. And courts must take into account the exceptional character of Internet shutdowns and their impact on core civil liberties before validating them.
  • The notion that the government must have the ability to control the Internet in order to preserve law and order is an intuitively attractive one. However, like many other intuitively attractive ideas, the concentration of more power in the hands of the government will only further disempower the individual against the state, and achieve a temporary illusion of security at the cost of a permanent loss of freedom.

Of faith and fever

  • Faced with one of the worst dengue epidemics it has seen, this year the Tamil Nadu government responded by freely distributing a herbal concoction, nilavembu kudineer , recommended for fevers under the ancient Siddha system of medicine. Even though there is no evidence of their efficacy, alternative remedies such as papaya-leaf juice for dengue find many takers during epidemics. While it is hard for government bodies to curb such practices, what they must never do is to endorse them. Yet, there are growing instances of exactly this happening.
    • For example, last year the Council of Scientific and Industrial Research launched an anti-diabetic herbal pill called BGR-34 on the strength of what appeared to be very poor evidence. One of the several ingredients of nilavembu kudineer comes from a plant called Andrographis paniculata , which appears in herbal medicine systems across South Asia. As is often the case with such herbs, some evidence exists for its potency against a range of illnesses.
    • For example, A. paniculata is known to inhibit the dengue virus in animal cells in a laboratory, and to reduce symptoms of respiratory tract infections in small human trials. But innumerable other herbal remedies also show such early promise.
  • Sadly, only a tiny handful of these remedies go on to prove their efficacy in large-scale, placebo-controlled human trials, the gold standard of modern medicine. This is because the science of developing drugs from medicinal plants is complicated.
  • Poly-herbal remedies like nilavembu are a mix of several compounds, while most of modern medicine relies on single-compounds. Plus, the amount of the active ingredient — the compound in a herb that acts against an illness — varies across plants. So drugmakers have to find a way to identify this ingredient and test it in large- scale trials. This exercise requires not only massive financial investment but also intellectual honesty.
  • Unfortunately, too many attempts in India by the government to validate traditional medicine are driven less by honesty and more by blind faith. This has led to the promotion of herbal remedies with scant evidentiary basis. Against this background, the endorsement of nilavembu — even if it is not pushed as an alternative to allopathic medicine — has its consequences in the face of a deadly epidemic. It is possible that people will misconstrue a supplement for a cure.
  • The risk of patients who need medical attention, such as those with dengue haemorrhagic fever, opting for this drug instead of rushing to a hospital should not be underestimated. So far dengue has made over 87,000 people sick across the country, while killing over 150. Both numbers are underestimations, given the government’s poor surveillance systems.
  • At a time when modern medicine is advancing towards greater transparency and replicability in clinical evidence, the government’s claims on nilavembu aren’t fooling anyone in the scientific community. But these are misleading laypeople in ways that can hurt them. This is a matter of shame.