India’s Internet Shutdown Rules Need A Relook, Experts Say

In the last two years, internet services in Rajasthan have come to a halt on 37 occasions—thrice within a 22-day period to restrict cheating in examinations held for recruitment in state services. In Meerut, internet services were shut down in July this year after a local organisation called for Bharat Bandh to protest rising incidents of mob lynchings. Altercation between a television journalist and Aligarh Muslim University students led to internet services being suspended in the city. And undoubtedly, the most debated instance of the common man being cut-off from accessing the internet is the ongoing curb in Kashmir, which the government claims in being relaxed in phases.

To be clear, none of these instances are documented in public official orders. And in most cases, the shutdowns didn’t last long enough for those affected to approach courts. But the continuing clampdown on communication services in Kashmir, after the abrogation of Article 370, has prompted some to knock at the doors of the Supreme Court.

Journalist Anuradha Bhasin has challenged the communication restrictions in Kashmir via a public interest litigation, seeking to know the provisions under which internet access has been blocked in the state. The petitioners have argued that despite raising the issue in court, they still have not been made aware of the copies of the order under which these shutdowns have been imposed.

Foreign Minister Subrahmanyam Jaishankar justified the government’s move saying the decision was taken to prevent a sudden outbreak of violence and curb potential terror activity. “How do I cut off communications between the terrorists and their masters on the one hand, but keep the internet open for other people? I would be delighted to know,” Jaishankar told The Politico, an international media publication. The government has taken the same line of argument in the Supreme Court saying that past experiences show that internet is used to instigate violence and carry out terror operations.

Experts working in the field of internet policy agree that some situations may require a blanket ban. But the directions should be reasoned, the process transparent and there must be accountability, they said.

Internet Shutdowns: The Numbers Story

The number of internet shutdowns in India between 2012 and 2018 jumped from three to 134, according to Software Freedom Law Centre, an organisation working in the field of tech policy. In 2019, there have been 77 reported instances of internet shutdowns.

The economic impact of it is worrying.

The cost of internet shutdowns to the economy was around Rs 21,336 crore between 2011 and 2017, according to Indian Council for Research on International Economic Relations—a think tank. Rajan Matthews, director general at telecom industry body Cellular Operators Association of India, said this is a conservative estimate.

“Internet shutdown is a blunt instrument and it should not be used frequently. In today’s connected world, when you shut down the internet, people cannot do banking, no transactions take place, people face issues in transportation. It affects the daily life to a very large extent and therefore it should be used as a last resort. We have, from time to time, conveyed to the government that its use should be more surgical.”

Instead of using internet shutdown as the first alternative to controlling local problems such as cheating in exams, the government should use other administrative methods to control the problem and use curbs on communication only as a last resort, Matthews said.

Internet Shutdown: The Legal Basis

Despite the rise in the number of internet shutdowns, rules regulating them were framed only two years back. Prior to 2017, internet shutdowns were ordered by district magistrates under Section 144 of the Code of Criminal Procedure. This section gives district magistrates powers to issue directions to maintain public order in areas falling under their jurisdiction.

In 2017, the government framed the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules under the Indian Telegraph Act, 1885. According to the new rules, internet shutdowns can be ordered only by the secretary in the Home Ministry at the central or state level or an authority nominated by them.

The order to shutdown internet services has to be forwarded within a day to a three-member review committee, which then has to decide on the validity of the order within five days. The members of the committee include the cabinet secretary, law secretary and the telecommunications secretary for orders passed by the central government. Orders of state governments are reviewed by the chief secretary, law secretary and any one of the other secretaries.

In Kashmir, the government has used these rules to impose the communication blockade. Its affidavit in the Supreme Court said —

“The orders to shut down the internet was passed by the Inspector General of Police, Kashmir Zone, Srinagar, which were confirmed by Principal Secretary to Government of Jammu and Kashmir, Home Department in terms of Rule 2 (1), first proviso, of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.’’

Internet Shutdown Rules: Misuse

Experts point to several lacunas in the 2017 rules and their implementation — lack of reasoned orders, accountability, and transparency.

There is no public database maintained by the government and even though the 2017 rules mandate that directions for internet shutdown must be issued via reasoned orders, it’s not followed, Apar Gupta, advocate practicing at the Supreme Court, told BloombergQuint.

“The only change brought about by the 2017 rules was to formally institutionalise the internet shutdown regime, but the government did not bring any change to make the system more accountable. The review process does not add any value to the regime as the committee is not vested with powers to take action if the shutdown orders are found to be unreasonable,” said Gupta.

Agreed Raman Cheema, an advocate practicing technology law. The 2017 rules are very broad, he said, adding that officers empowered to issue directions to shutdown internet services can do so for a wide variety of issues—all in the name of public order.

“Even the rules on interception of communication lines—on which these rules are partly based on—have more grounds for when you can issue them and whether you have first followed alternative and less-intrusive means. That requirement is not there in the shutdown rules even though it is a much more severe form of curtailment of your rights,’’ said Cheema.

Barring a handful of instances, the internet shutdown orders have not been challenged in courts which make it harder to judge if due process has been followed.

The judicial examination of these orders—once they’ve been implemented—is usually a post facto exercise. For this reason, the rules must mandate inclusion of a judicial member when the decision to shut down internet in a state is being considered, Cheema said. This could be an effective mechanism to ensure that the directions are justified in a given situation, he said.

The Constitutionality Test

The internet shutdown rules derive their power from Section 5(2) of the Telegraph Act which lists situations under which the restrictions on telecommunication services can be imposed. These include sovereignty and integrity of India, security of the state, friendly relations with a foreign state, public order and preventing incitement to the commission of an offence.

Senior Advocate Sajjan Poovayya pointed out that these grounds are similar to some of the grounds the Constitution lists for restricting freedom of speech and expression in Article 19. If one looks at these rules from that prism, he said, one can conclude that internet access can be curtailed only on similar grounds. And so, the substantive statutory framework for internet shutdown isn’t far from what is desirable, Povayya added.

But there is room for improvement to favour a right-based approach envisaged under the Constitution, said Poovayya.

He explained that the review mechanism provided in the rules is similar to the procedural safeguards under statutes such as the Aadhaar Act, which the apex court has found to be sufficient to prevent abuse of process, said Poovayya. But one flaw in the review mechanism of the 2017 internet rules stands out.

Last month, the Kerala High Court had declared the right to access the internet as a fundamental right. The court was hearing a petition by a student who was denied access to internet in the hostel at night. Internet access cannot be denied on arbitrary grounds, the apex court had said.

In the light of this judgement, stakeholder interest becomes a necessary consideration and the rules should include an appeal mechanism against shutdown orders, Poovayya opined.

‘’It is desirable that affected parties are provided a statutory platform, as opposed to being compelled to invoke the writ jurisdiction of the judiciary, to ventilate their grievances in this regard.’’ said Poovayya.

Lawmakers can also look to further strengthen the efficiency of the system by including progressive amendments such as a sunset clause. A sunset clause provides for an expiry period of any order that is issued for a specific purpose. The existing rules on internet shutdown do not mention any maximum period for which a shutdown can be imposed, he added.