In August of 2019, the Indian government cut off internet and cellular services in the state of Jammu and Kashmir ahead of Prime Minister Narendra Modi's move to abrogate a law that had granted the state a special status. Ostensibly, the purpose of the internet shutdown was to prevent violence and maintain order amid a wave of protests. Kashmir, the disputed Himalayan region that sits between India to the south, Pakistan to the west, and China to the east, has been a conflict zone practically since India gained its independence. But the shutdown, which lasted 18 months, deprived a whole community of people of the benefits of access to the digital world.
Such shutdowns have become distressingly common. For the past three years, India has had the highest number of any country in the world by a considerable margin. The shutdowns have occurred mostly in areas where citizens have been protesting against the state.
Although the government has cited law-and-order concerns to justify these actions, there is little, if any, evidence to support a link between internet access and violence or other dangerous behavior. Instead, research shows that when used in concert with state force, internet shutdowns make it more difficult to research and investigate human rights violations and other crimes. And in an increasingly connected world, they prevent citizens from accessing information, connecting with health care, educational resources, and social services, and staying in touch with friends and family.
As Indian policy researchers, we would also argue that the shutdowns have an even more pernicious effect: They undercut the nation's moral and ethical requirement to record history as it is — an obligation that has come to be recognized in international policy as "duty to memory."
The concept of duty to memory is part of a wing of international law, known as transitional justice, aimed at helping societies who have suffered a significant trauma to transition to a peaceful state. It argues that records of atrocities — like genocides, for instance — help to restore the humanity of those who suffered, forging a constructive path forward by exposing the conditions that make violence possible. While this principle has been discussed sporadically over the years, it came to the forefront internationally in post-genocide Rwanda, where the need for recording history in literature was highlighted as a direct duty. In 2016, the United Nations' special rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, Pablo de Greiff, argued that recording "veridical and comprehensive" accounts is fundamental to addressing past atrocities, and that the failure to do so increases the likelihood of repeating those atrocities.
In India, the recording of history has mostly been neither veridical nor comprehensive. Rather, events have often been documented with a victor's bias. As mainstream Indian historians documented the worst aspects of colonialism, they failed to record the stories of freedom fighters who were ideologically opposed to the leading political parties at the time of independence. The stories of Kashmiris themselves often weren't recorded in institutional archives, owing to there being no place in Indian nationalism for a separate Kashmiri identity.
Amid all of this, the internet has become a democratizing force. Through videos and other documentation, often shared through social media, the Kashmiris have countered state narratives and built their own archives based on memorializing their lived experiences. Thus, the internet shutdowns in Jammu and Kashmir have not only curtailed freedom of expression and taken a social, economic, and cultural toll, they've disrupted the comprehensive recording of events — and, in doing so, directly violated the Indian government's duty to memory. One can only imagine how many stories were lost to internet shutdowns in Jammu and Kashmir and in other sites of recent uprisings, including mass demonstrations of farmers protesting new agricultural policies and of minority groups against amendments to the citizenship law.
The Supreme Court of India addressed the issue of internet shutdowns for the first time in a 2019 case that challenged the shutdown in Jammu and Kashmir. Although the court mostly upheld the legality of internet shutdowns, it also held that the state must disclose certain relevant information and that the justification must meet tests of "proportionality," a legal principle the court's decision defined with an aphorism from the British jurist Lord Diplock: "You must not use a steam hammer to crack a nut, if a nutcracker would do." In other words, government action to restrict rights should not exceed what is necessary to meet a legitimate public purpose. The court ruled that indefinite internet shutdowns violate that proportionality doctrine. Still, some legal commentators have argued that the court's protections didn't go far enough. And when the government subsequently ignored those legal protections — prompting lawyers to bring the issue to the court in a second case — the court failed to take meaningful action, a failure that some commentators have termed an "evasion by abnegation."
Currently, the right to access the internet has been recognized by the Indian Supreme Court as an auxiliary right of the Indian Constitution. This represents an "instrumentalist" view that values internet access as a medium for the expression of other rights — like the right to freedom of expression and the right to practice any profession and carry on any trade. In the interest of preserving knowledge and history during civil unrest like that unfolding in Jammu and Kashmir, we think this protection should be extended to include an obligation to preserve internet access — or at least not compromise it — in order to safeguard the right of the duty to memory.
The right to internet access should be defined broadly to meet standards of meaningful connectivity, which stipulate access to a smartphone, sufficient data allotments for sharing information, and an uninterrupted 4G or faster internet connection. Any state action that compromises any of those standards should be categorized as an internet shutdown and should be considered a violation of fundamental rights like freedom of speech, as well as of duty to memory.
In Jammu and Kashmir, as in so many other regions that are mired in conflict, the internet has proven vital for obtaining accurate, comprehensive recordings of history. It has given a voice to marginalized groups whose stories might otherwise be forgotten to time. No government should be able to take that away on a whim.
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Shonottra Kumar is a legal and policy researcher based in India and is currently working as the outreach lead at Nyaaya.org, an open-access digital resource simplifying legal information.
Sumeysh Srivastava is senior resident fellow at the Vidhi Center for Legal Policy and development lead at Nyaaya.org.