The Sovereign and the Server: Indian’s Digital Freedom
AS SOON AS SHIV SENA LEADER Bal Thackeray died in 2012, a bandh followed even without anyone calling for it. He died from natural causes and old age, so there wasn’t anything to be angry about. Local Shiv Sainiks still started spreading out, asking shops to shut down and blocking traffic. Soon parts of the state were at a standstill. It was at this point that Shaheen Dhada, a 21-year-old student from Palghar, a town on the outskirts of Mumbai, made a Facebook post. She just wrote the obvious: that stopping an entire region because of one death was overreach and the reason people complied was out of fear, not respect. A friend of hers liked the post. Within hours, the private hospital of Dhada’s uncle was vandalised by Shiv Sainiks and the police decided that the law had been broken. Not by the vandalisers but the two students.
They were arrested but eventually the cases were dropped. The story would have a sequel. Within days, Shreya Singhal, a law student, used it to file a public interest litigation (PIL) questioning one of the laws under which the arrests were made—Section 66A of the Information Technology Act, which gave the police the power to criminally charge anyone making an offensive post. Since it is difficult to define offensive, the sentiments of a local Shiv Sena leader were enough. In 2015, the Supreme Court struck down the section, and it was considered a victory for freedom of speech in India. The story was still not over. For years the police continued to arrest people for online posts, charging them with section 66A. It became what is known as a zombie law, something that remained alive even when dead because authorities were ignorant of its death. In 2022, seven years after striking down the section, the Supreme Court ordered existing cases closed and no new ones to be filed.
In India, digital freedom occupies a curious position. It exists on paper, is not very effective on the ground and is often manipulated. In 2022, for instance, it didn’t require a section 66A when a Kashmiri professor in Kolhapur, Javed Hajam, put up a couple of status updates on a WhatsApp group of parents and teachers. He wrote, “August 5 – Black Day Jammu & Kashmir” and “14th August – Happy Independence Day Pakistan”. He was booked under an Indian Penal Code (IPC) section dealing with creating enmity between groups. The high court offered no relief but the Supreme Court eventually quashed the FIR.
Software Freedom Law Center, India (SFLC.in) began as an organisation to support free and open source developers on issues relating to patents and copyrights but in 2011, it expanded its ambit to digital freedom because free and open source software needed an open internet. It was involved in a case against the Information Technology (Intermediaries Guidelines) Rules 2011 that was clubbed with the Shreya Singhal matter. In 2012, SFLC began to track another phenomenon, the imposition of internet shutdowns. The website internetshutdowns.in, lists 930 shutdowns having taken place in a total of 29 states. Jammu & Kashmir tops the list with 449 but these shutdowns don’t happen just because of law and order threats. Rajasthan is second with 115 shutdowns and many of them are related to apprehensions of examination papers being leaked. Prasanth Sugathan, legal director, SFLC, says they realised a need for such a tracker because of the difficulty in obtaining data. “In India we have hyperlocal shutdowns. It could be a small district or even a few talukas. We thought it was important to have one single place to get all this data together for anybody who wants to do research or report on it.”
There were only three shutdowns in 2012; by 2018, the number peaked at 136. In 2025, there were 54 and so far in this year there have been 28. A reason for the drop was the Supreme Court coming down on it in 2020. It was called the Anuradha Bhasin case after the editor of a Kashmir newspaper who couldn’t get her edition out because of the shutdown that followed the abrogation of Article 370. The court laid down a procedure for how shutdowns needed to be imposed. But even two years after the judgment, it was not being followed when in West Bengal, millions in eight districts were denied internet for certain hours of the day because of fear of leaked examination papers being distributed. Three days into the shutdown, the West Bengal High Court ordered a stay and access returned.
“It is only a legitimate tool in the most extreme of circumstances. Otherwise, I see this as essentially a digital analogy of banning a book. Even if say a paragraph is legally objectionable, the answer should be to redact that paragraph, not to ban the book,” says Arghya Sengupta, founder and research director at Vidhi Centre for Legal Policy, who specialises in constitutional law and regulation of the digital economy. He feels internet shutdowns do more harm than good. Much of life happens online now—people communicating for leisure and work, doing transactions, booking hospital appointments, filling up applications, ordering groceries or taxis—and an internet shutdown prevents everything. “It’s a blunt instrument. In some very extreme cases it might be needed, but it is now becoming the first port of call for governments. As technology improves, I certainly hope it will become sooner rather than later an anachronism,” says Sengupta.
By the time courts are moved, it is too late for them to step in because the shutdowns are short. This happened, says Sugathan, even in the recent Jantar Mantar protests. “We filed a petition. That was supposed to come up on the Friday, but then got adjourned to Monday. By the time, the protest was over and so was the shutdown,” he says.
PAVAN DUGGAL, WHO specialises in cyber law, got his first internet connection a few months after it was launched in India in 1995. There were just a couple of thousand users then. “It was a very new paradigm. Speeds were very slow but it [the new technology] blew us apart. And after two months of madness I realised that there has to be legal and policy ramifications that they need to make. At that time cyber law was just getting started. So we got invested in the space,” he says. Right from the first IT Act India passed in 2000, Duggal has been involved in giving inputs for regulations that have since come up. He says they gave contours to the freedom Indians enjoy online. “Prior to the laws, there were no legal frameworks, so freedom could be taken away at any point of time,” he says. The regulations also impose restrictions and conditions under which freedoms can be curtailed, and it is this balance that still continues to be chased. The tension leads to flashpoints. It is not just governments but private companies that test the balance.
In 2015, Facebook came out with an initiative that gave free access to the internet for users on mobiles. Called Free Basics, it, however, meant only offering what the company deemed fit. It ran headlong into the concept of Net Neutrality, which says internet cannot be sliced off. An online movement started and, even though this would have introduced internet to millions, the initiative had to be rolled back after a ruling by the Telecom Regulatory Authority of India (TRAI). At the time Sengupta advised TRAI. “Facebook was determining what is the internet for people who had never been on the internet. And it would essentially be Facebook plus a few other services that Facebook would allow inside its walled garden. So if that doesn’t constrain digital freedom, I don’t know what does. The question of digital freedom is an expansive one. The nature of threats to freedom doesn’t only lie in nation states, but also lies in large private corporations,” he says.
Most Indians are present on some form of social networking service, like X, Instagram, or WhatsApp, and almost all are owned by foreign corporations. They have the data of Indians, can deny them access at will and the mechanisms for appeal are opaque. A startling instance of this was when, in July, a Facebook post by Prime Minister Narendra Modi was restricted for a few hours. Nine days later, Aam Aadmi Party leader Arvind Kejriwal was accusing Meta of restricting his Instagram account. He wasn’t given a reason, got just routine acknowledgment to emails and could not find out how the restriction could be removed. But, at least, political leaders can make a public issue out of it. Individuals or small businesses, should they be denied access, just have to live with the uncertainty.
Sengupta argues that these big tech corporations are new sovereigns because of their scale, and we need to start thinking of them like countries when we engage with them. “The extent of our digital freedom is really conditioned by these boundaries that are laid down by private corporations from abroad. It’s necessary that citizens raise their voice against privacy violations by the state, and that’s critical. But it’s also important for citizens to think twice before they sign on to a product which is privacy-invasive but gives them some benefit.”
The Indian government has been constantly imposing regulations to make these foreign corporations accountable, but that leads to another set of issues. In February, the government made it incumbent on social media platforms to take down posts that violate privacy of individuals within three hours. On paper, this addresses issues like malicious deepfake images posted online. The platforms have safe harbour by which they cannot be held accountable for what users post. In March, the government came out with proposals that would dilute safe harbour, making it conditional on following its directions. SFLC has argued that such measures give corporations a greater incentive to remove posts or restrict accounts. Sugathan says, “They will always err on the side of caution. So any content they think is even slightly problematic, they will take down. They are here to make money, not to protect your rights.”
The arrival of artificial intelligence (AI) has thrown open an entirely new set of challenges to an Indian’s digital freedom. Take facial recognition technology. AI has made it exceptionally effective and it is very useful for purposes like security or managing queues. The DigiYatra app, for instance, can speed up your entry to an airport. On the other hand, facial recognition is now also used to monitor protests. In the Jantar Mantar agitation, the Delhi Police used it to identify people with criminal records, which also meant capturing the faces of those who were not criminals. There is also no laid-down procedure for its use. “We don’t have any specific law when it comes to facial recognition—whether it can be used, to what extent, etc. These are matters that need to be decided by law,” says Sugathan.
AI is something of a legal black hole in India. A law governing it is urgently required, according to Duggal, because of what the technology is going to churn out. There are now AI agents that perform tasks, so if they cause harm to a human, who or what is to be held accountable? What rights does an Indian have against an algorithm? “I cannot deal with today’s and tomorrow’s challenges by yesterday’s laws. The IT Act was never drafted keeping in mind artificial intelligence. I’ve been arguing that India requires a dedicated law on artificial intelligence. This law must stipulate the rights, duties, and responsibilities of all stakeholders in the AI ecosystem. This law must also stipulate the parameters of AI accountability.”
On June 9 this year, Anthropic, the US AI company whose model Claude is considered among the best, released its latest version, Fable 5. Indians started using it. Three days later, the US government ordered Anthropic not to allow any foreign national access the model and the company, because it couldn’t implement it, just switched it off, only restoring it 18 days later. The episode was a reminder that access to a critical technology can be denied at will by another government or its company, adding one more circle to the forces that control the digital freedoms of Indians. n