Skip to main content

Internet Shutdowns and Constitutional Democracy: A face-off

As a recent Washington Post article suggests, the Internet shutdown in Kashmir valley has crossed a landmark of more than 140 days – the longest ever internet shutdown to be imposed in any democracy. With the winter vacations in Supreme Court going on it’s well predictable to go beyond 160 days at least, unless the government lifts the ban on its own.

Meanwhile, Internet shutdowns have been rampant throughout the country for the last few days in the wake of popular protests against the Citizenship (Amendment) Act, 2019. The Internet continues to be shut down in majority parts of the north-eastern state Assam and some regions of the National Capital Delhi also have faced internet shutdown in the past few days. Interestingly, a Chinese media cites Indian Internet Shutdowns as an example to justify Chinese authoritarian shutdowns - which is quite ironic given the fact that India and China are the largest democracy and authoritarian regime, respectively!

Amid such shutdowns, questions arise as to the extent to which internet shutdowns kill the spirit of democracy, and the gravity of such shutdowns. Is internet connectivity important to democracy and democratic processes; and if yes, how important is it? The degree of importance that we attach to internet connectivity in a democracy in the 21st century should, to my mind, dictate the extent and ease with which authorities should be permitted to impose internet bans/shutdowns.

Constitutional Democracy – A paradox?

Before we talk of the importance of internet connectivity in a constitutional democracy, it’s diligent to discuss a bit about constitutional democracy first. The very idea of a constitutional democracy is paradoxical prima facie. A democracy, as is classically understood, rule by the will of the people, where the will of the people is represented by the majoritarian view. As per the classical conception of democracy, the law of a republic must express the unrestricted will of the citizens, with no limits whatsoever thereon[1]. The idea of constitutionalism, on the other hand, is based on the very foundational conception of a limited government. The powers of a government are and have to be essentially limited, by the framework of a constitutional boundary, constitutionalism asserts.

These two contesting lines of thought have been competing historically in the domain of political philosophy and even politics in practice. Individual interests versus state powers, individual rights versus popular sovereignty, private autonomy versus public autonomy – these have been the central theme of debates throughout the history of political philosophy. Constitutional democracy, as an idea, brings together these two competing lines of thought successfully.

A constitutional democracy views legitimation of those laws from two perspectives; two sources. The first source of legitimation in a constitutional democracy is what we call rule of law, or sometimes fundamental rights or human rights – principles of individual autonomy that is so sacred that they cannot be overridden by any amount of governmental will or popular view; rights so sacred that no state power can take them away. The second source of legitimation is the popular sovereignty, as to incorporate the elements of a democracy. Popular sovereignty is to be honoured as the law of the land, and will of the people is of surmount importance, subject to the other source of legitimation, namely constitutionalism.

Internet Access and Constitutional democracy

Significant to a constitutional democracy is an element of deliberation – a deliberation that sets forth the background for a marketplace of ideas[2] where truth comes out as winner[3]. Number of scholars have emphasised upon the need and significance of deliberation in a constitutional democracy and how it is of utmost importance on the part of the people in order to truly exercise the power of a popular sovereignty[4].

The deliberative democracy model can be traced back to the late 20th century, to scholars like Benjamin Barber[5], Robert Bellah[6], Amitai Etzioni[7], etc. Although different scholars have proposed for different models on how a deliberative democracy should be like ideally, they all have a common agreement when it comes to the fundamental identifying features thereof. Almost all the scholars agree on the significance of at least three features of deliberative democracy: the role of open discussions, the importance of citizen participation, and lastly, the existence of a well-functioning ‘public sphere’. Of these, the concept of a well-functioning ‘public sphere’ holds specific significance for a discussion on the role of the internet.

A well-functioning public sphere can be understood as a public space where discourse and deliberations can be undertaken freely and qualitatively so as to pave way for an informed citizenry. Few scholars have attempted at mapping out a number of distinctive features of a well-functioning public sphere, so as to work as a starting point. As Peters and Habermas[8] defines them, the distinctive features of a well-functioning public sphere can be encapsulated as equal access to available resources, openness in the pursuit of particular issues, transparency of the outer and inner affairs, and a public network of connected participants[9].

The conviction that the internet can help us create the perfect public sphere is made stronger when we look at the role that the internet plays in transforming communication around us. Almost all the forms of communication central to a deliberative democracy have been transformed and amplified by the internet[10]. As Gimmler[11] discusses, the primary forms of communication, namely, Conversation, Information Aggregation, Broadcast, and Group dialogue stand transformed by the internet.

Modern communication frontiers and the internet have been inseparably linked, so much so that ICT and the internet are often used interchangeably. Internet and other modern Information and Communication Technologies provide for the amplification of five features that are central to the transformation of communication frontiers[12]. The first one is the quantity of information: internet presents before us the possibility to generate, transfer, and store unimaginably large amounts of data and information which was never possible in human history before. And that links well with the second feature, communication speed. Modern technologies like optical fibre and other solid transmission techniques provide for information transfer at the blink of an eye, which paves the way for real-time communication. The third feature is decentralisation, and it’s getting renovated each passing day with the upcoming of new technologies like the blockchain technology and other peer-to-peer techniques which completely eliminate the need for intermediaries. The last two features are interactivity and demassfication, which no doubt play a significant role in making digital communication what it is today[13]. In addition to these five, other scholars have also added other dimensions, like cost, security, complexity, convergence, asynchronicity, globalisation etc[14].

Internet shutdowns – Deathblow to well-functioning public-spheres?

Internet shutdowns are detrimental as well as threatening to the very existence of a constitutional democracy, given the crucial role the internet plays in a constitutional democracy; they suffocate all the democratic aspects of inter-citizen interactions that the internet promotes. Conversation, Information Aggregation, Broadcast, and Group dialogue, as discussed before, are the four main forms of inter-citizen communication and interaction in a democracy that facilitates deliberation – and all these stand blocked by an internet shutdown.

Given the significance of information technologies and internet in ensuring a well-functioning public-sphere, internet shutdowns are nothing but a deathblow to the very existence of public-spheres. And given the role that public-spheres play in a deliberative democracy, internet shutdowns are ultimately the perfect recipe for an authoritarian regime in the twenty-first century – no wonder the Chinese state media was one of the quickest to support and justify the internet shutdown in a neighbouring country.

[1] Jurgen Habermas, Constitutional Democracy, 29 Polit. Theory 766–781 (2001).
[2] See Shreya Singhal v. Union of India, AIR 2015 SC 1523.
[3] Jill Gordon, John Stuart Mill and the Marketplace of Ideas, 23 Soc. Theory Pract. 235–249 (2016).
[4] Antje Gimmler, Deliberative democracy, the public sphere and the internet, 27 Philos. Soc. Crit. 21–39 (2001).
[5] Benjamin Barber, Strong democracy: Participatory politics for a new age (1984).
[6] Robert Bellah, The Good Society (1991).
[7] Amitai Etzioni, The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda (1993).
[8] Jurgen Habermas, Between Facts and Norms: Contributions to a discourse theory of Law and Democracy (1998).
[9] Gimmler, supra note 4.
[10] Gimmler, supra note 4.
[11] Id.
[12] Christopher Weare, the Internet and Democracy: the Causal Links Between Technology and Politics, 25 Int. J. Public Adm. 659–691 (2002).
[13] J.R. Abramson et al., The Electronic Commonwealth: The Impact of New Media Technologies on Democratic Politics 331 (1988).
[14] E.M. Rogers, Communication Technology: The New Media in Society 273 (1986).

Popular posts

Citing Legal Materials Using Bluebook - A Short Guide

© Anshuman Sahoo 2017.  Free for mass distribution till the source is properly mentioned. So, you collected the relevant materials for your research, went through them carefully, and evaluated the available materials. Now, what remains is to carefully dot down your arguments in your own words while supporting those arguments and ideas by citing relevant materials in the footnotes. It is necessary to cite relevant legal material that you have referred to because it reflects your research and in-depth study that you have undertaken to write that paper. Apart from that, while quoting the work of someone else, citation is necessary to avoid possible allegations of plagiarism. However, while citing the materials in the footnotes section, you cannot cite them as per your wish. For example, while citing page no. 99 of ‘The Start-up of You’ book written by Reid Hoffman, you cannot cite it as ‘page 99, The Start-up of You, Reid Hoffmann’ just because that seems convenient. There is

A journey called Law School: Few words for the newcomers

Law school has its own ways to teach us the needed, regardless of our consent or interest thereto! However, gradually, through the ups and downs of our journey, it seems that while there are some things that we can change, there also exist some things that need to be accepted. I have had my fair share of ‘law school experiences’ to enable me to write this piece. However, I cannot guarantee that you’ll be having the same experiences through your journey. Therefore, inapplicability regretted. So, shall we start? 1. You’ll be facing tough competitions. Yes, cutthroat competition. You’ll compete with unfaithful friends and sincere enemies. Be prepared to be betrayed, used, and knocked out. However, don’t let this affect you. Everyone you meet in Law School isn’t your competition, but a potential ally. Learn to build meaningful relationships. Remember, legends don’t compete, they collaborate! 2. You’ll be having not-so-competent teachers teach you. We all face it. And not just

Legal Issues Surrounding Cloud Computing

With the explosive growth of innovations in the Information Technology industry, the Legal provisions are currently lagging behind and desperately looking for ways to cope up with the never-seen-before advancements. Cloud computing, being one of such recent advancements, have raised a number of legal issues including privacy and data security, contracting issues, issues relating to the location of the data, and business considerations. The abovementioned issues are the primary ones faced by almost all the nations across the globe. However, when it comes to the Indian scenario, a number of additional complicated issues are faced by India owing to lack of awareness and lack of resources. With the ‘Digital India’ initiative in the news, it is obvious that more and more individuals and organisations will be using online services and infrastructure via the Cloud in the near future; and it is therefore necessary to analyse our position thereon and discuss whether our legal system is r
Creative Commons License

All these articles are written by me and are licensed under a Creative Commons Attribution 4.0 International License