Last year, India witnessed more internet shutdowns—where the central or state governments temporarily suspend internet access in a particular region citing law and order problems—than any other country in the world. According to the Software Freedom Law Centre (SFLC), a legal services organisation that is involved in a global campaign against internet shutdowns, 31 such instances were reported in 2016. These cost the Indian economy around Rs 6,000 crore. This year, with three months still remaining, 55 shutdowns have already been reported. The frequency of shutdowns has become alarming—on 25 September, internet services resumed in the state of Darjeeling after over three months; the same day, services also resumed in Tripura after a four-day suspension. In Bihar’s Nawada district, an internet blackout began on 28 September.
The legal regime governing internet shutdowns has seen a curious evolution. Governments initially justified shutdowns on the back of Section 144 of the Code of Criminal Procedure (CrPC)—an amorphous legal provision that empowers a district magistrate with wide discretion to pass orders as she deems necessary for public safety. In 2015, the Gujarat High Court, in what is the only court ruling on shutdowns till date, upheld the use of Section 144 to impose internet shutdowns. The Supreme Court summarily dismissed the appeal against the ruling—the bench only suggested that a shutdown “becomes very necessary sometimes for law and order,” with no further comment.
The effective validation of the sweeping exercise of power under Section 144 is aggravated by the secrecy surrounding the issuance of these orders. For instance, in the case of a six-month long mobile internet ban in Kashmir following the death of the Hizbul Mujahideen commander Burhan Wani, a right to information application revealed that no state authority knew who imposed the ban. Similarly, an RTI application seeking information about the Darjeeling internet shutdown was declined, because the order authorising such indefinite shutdown was deemed “exempted from disclosure.”
Instead of reducing the instances of internet shutdowns and the lack of transparency plaguing them, the central government, it appears, is seeking to legitimise shutdowns by creating a regulatory framework for them. On 7 August, the Ministry of Communications notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, or Suspension Rules, under the Indian Telegraph Act, 1885. The process leading to the notification of these rules, too, was shrouded in secrecy. Perhaps as a result, the rules suffer from serious defects in the manner in which it envisions a suspension of internet services, as well as a lack of safeguards that would restrict the harms of shutdowns.
The notification states that the rules seek to “regulate the temporary suspension of telecom services.” It is important to note that “telecom services” has not been defined in the Telegraph Act or the Suspension Rules. The phrase may draw its meaning from the Telecom Regulatory Authority of India (TRAI) Act of 1997, which has defined it in a broad manner to include all telephonic services. The power to ban voice calls is a frightening prospect. However, the inevitable bad press, the violation of rights of free speech and association—similar to the rights violated during a shutdown, but to a greater degree due to the lack of effective alternatives for communication—and the potential risk to human life, makes it less probable that the government would exercise that option. Regardless of their implications for voice calls, however, the rules appear to target a normalisation of internet shutdowns. This calls for a detailed examination of the rules.
At the outset, the brazen manner in which the Suspension Rules were notified must be highlighted. In May 2016, while striking down regulations that imposed a penalty on telecom operators for call drops, the Supreme Court urged the Parliament to enact a law to ensure that subordinate legislations, such as rules and regulations under an act, follow a “transparent process.” The court suggested that the process should ensure that “due consultations with all stakeholders are held” and that the rule-making body should prepare “an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them.” The court reasoned that this would “reduce arbitrariness in subordinate legislation making” and “conduce openness in governance.”
The Suspension Rules failed entirely in following such a transparent process. No notices were publicised about such rules being in the pipeline, nor were any consultations held with the stakeholders, including telecom operators, civil society groups, and consumers. Consequently, no reasons were offered for the contentious procedure designed by the rules to impose shutdowns. Transparency, open governance, and consultations are not mere catchwords, but essential democratic tools that perform an important function: to strengthen the rule-making process by informed consideration of every affected party’s submissions.
The Suspension Rules are palpably weaker for not soliciting the opinion of these stakeholders. The rules trace their power to order a shutdown to Section 5(2) of the Telegraph Act, which allows for communications to be intercepted and detained if such a measure is “necessary or expedient,” on the occurrence of a “public emergency,” or in the interest of “public safety.” Conventionally, this power has been used for tapping telephones. In 1996, the Supreme Court adjudicated a challenge to the constitutionality of this provision and of phone tapping, in the case of People’s Union for Civil Liberties vs Union of India. The court held that the power can be resorted to only when “necessary,” and that chief among the considerations for necessity was whether the information “could reasonably be acquired by other means.”
The Suspension Rules authorise the secretary to the home department of the concerned state or the secretary to the home ministry to direct telecom operators to suspend internet access. Shutdowns are contemplated in situations of “public emergency or public safety,” ostensibly becoming necessary to prevent incitement through mass-messaging social media platforms such as Whatsapp or Facebook. The object is clear: to prevent crowds from communicating and, by extension, organising. However, the architecture of the internet is vast and conceives every possible activity, not all of which are communicative in nature. Functions such as e-commerce, financial services, e-governance, cloud computing, media streaming are all activities deeply entrenched in urban life. In this backdrop, it is illogical—and certainly not “necessary” in the mould of PUCL—to prohibit access to the whole internet when only its communicative portions are problematic.
An allied concern is whether the standards set by the Supreme Court in Shreya Singhal vs Union of India will be met. In the Singhal case, the court found section 66A of the Information Technology Act—which criminalised sending offensive messages through communication services—unconstitutional. It held that any restrictions on free speech must be narrowly tailored and “couched in the narrowest possible terms.” Even assuming that a shutdown is ever “necessary or expedient,” a narrowly tailored approach warrants restrictions on the place and time of internet disruption. For instance, limiting internet suspensions to specific periods of the day could be one safeguard.
Corollary to this, it is disappointing that the rules do not include a sunset provision, or a clause that would require the shutdown to be lifted automatically after a specified period of time. It often appears to be the case that governments suspend internet services to initially preserve peace, but continue with the suspension even after its object is achieved. For instance, the shutdowns in Kashmir and Darjeeling continued for longer than two months despite the fact that Section 144 mandates that an order under the provision should not ordinarily exceed two months. The Supreme Court’s judgment in the PUCL case also held that any interception order under the Telegraph Act must initially take effect for only two months unless extended, but in any event terminate after six months. With no sunset provision mandating upper time-limits in the Suspension Rules, governments may impose shutdown orders for indefinite periods.
The only discernable safeguard provided in the rules appears to be the constitution of a review committee comprising a cabinet or chief secretary, for the central or state governments respectively, and two secretaries of the concerned government authorising the suspension order. Their task is to evaluate whether the order was in accordance with the terms of Section 5(2) of the Telegraph Act. However, the rules do not provide a procedure for the review committee to follow if it finds that the order was not valid. With the procedure silent, one can only surmise on the what, when, and how of the review committee’s course of action.
Section 5(2) of the Telegraph Act also accords special status for “press messages”—a term that has not been defined in the Act. The proviso to the section notes that the press messages “shall not be intercepted or detained” unless their transmission is prohibited. This proviso has been altogether omitted from the rules. A reading of this proviso would arguably oblige the secretary to specifically ban internet access of the press in its suspension order and provide reasons for the same. However, there have been no such exceptions for the press in internet shutdowns in India so far.
In times of public distress, it is imperative to grant special privileges to the press. The media plays a key role in not only informing the outside world about the state of affected areas, but also in supplying often life-saving information to people stuck in the affected areas themselves. This information transmission, so crucial for citizens, also notifies state authorities of news from disturbed areas, making the press an indispensable player in such situations. As provided for in Section 5(2), correspondents accredited to the government at the very least, barring exceptional circumstances, must be exempted from any suspension order.
There are currently over 450 million Internet users in India, and that number is expected to rise to 730 million in the next three years. The central government has strongly pushed the Digital India campaign in recognition of the massive potential of the Internet as an enabler for governance at the door-step. The campaign’s primary intended objective is to transform the way we think about government institutions—babus, long queues, red tape—and consequently, the way we think about governance. In the private sector, mobile operators are changing the landscape of the telecom sector. One big operator has already launched VoLTE technology in India—through which wireless voice calls take place over the Internet—and others are following suit. In its recent Interconnection Usage Charges regulations, the TRAI has disincentivised the continuation of incumbent voice call technologies in favour of VoLTE, and effectively set 2020 as a market deadline for transition. A time will come in the near future when access to the internet will be a prerequisite for making any voice call, which is to say, the implications of a shutdown order will be immense.
Today it is the internet, tomorrow it could be voice calls. Perhaps that frightening prospect is not so improbable after all.
Nakul Nayak is a lawyer based out of New Delhi.