Internet shutdowns have become a recurrent phenomenon in India. The government cites the reasons for these shutdowns to be maintenance of law and order, protection of national security, and prevention of misinformation. However, internet shutdowns often have severe implications for the free flow of information and expression.
Recently,
expressing concern over frequent internet shutdowns without any empirical study, the Standing Committee on Communications and Information Technology has pulled up the Department of Telecommunications for not maintaining a record of incidents. The panel has further asked the Department of Telecom (DoT) to lay down a clear principle of proportionality and procedure for lifting the shutdown in coordination with the Home Ministry to prevent any abuse of the suspension rules.
Expressing concern over frequent internet shutdowns without any empirical study, the Standing Committee on Communications and Information Technology has pulled up the Department of Telecommunications for not maintaining a record of incidents.
Understanding internet shutdown and its impact
It cannot be denied that the internet has dramatically revolutionised the way we live. From the basic to the most complex, the internet now affects many facets of economic and social activity. The frequent internet shutdowns are harming sectors primarily dependent on internet services such as e-commerce, tourism, and I.T. services. Indians suffer more internet blackouts than citizens of any other nation today. According to
data from Access Now, between January 2012 and June 2022, there were 647 government-imposed internet shutdowns across India—the world's highest number of internet suspensions so far.
The internet has often been suspended on unsubstantial grounds,
such as to stop cheating while conducting examinations or
to prevent protests from taking place in an area. The threat perception in all such cases is primarily flawed as district administrations in various states have been suspending internet services for an entire region for administrative purposes, making it not in compliance with the
principle of proportionality. For instance, there are multiple ways to conduct free and fair examinations, but resorting to an internet ban to prevent cheating affects the daily life of other people in the region too. The adverse impact caused by such suspensions outweighs any speculative benefits.
Lack of sufficient framework and safeguards
The lack of a sufficient framework and safeguards is the major reason for internet suspension being a recurrent phenomenon since there are fewer constraints on bureaucrats imposing internet shutdowns. The internet suspension is primarily imposed under the
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, and
Section 144 of the Code of Criminal Procedure, 1973 (CrPC).
There are multiple ways to conduct free and fair examinations, but resorting to an internet ban to prevent cheating affects the daily life of other people in the region too.
The Telegraph Act, 1885 is a legacy of the colonial era. It was intended to serve the British Empire as it allows the government to take possession of or prevent the transmission of any telegraphic message. This archaic legislation confers power on the Central Government to make rules. The Suspension Rules were enacted in the exercise of this power. They provide that direction to suspend telecom services may be issued only through a reasoned order and only by the Union Home Secretary or the State Home Secretary for their respective governments. It may only be ordered “on the occurrence of any public emergency” or “in the interest of public safety”, and if the issuing authority is satisfied that the suspension is necessary to safeguard “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”. By the next working day, the order must be placed before a three-member Review Committee, which decides within five days whether the order constitutes a ‘public emergency’ or threat to ‘public safety’ under
Section 5(2) of the Indian Telegraph Act, 1885.
These Suspension Rules are flawed for various reasons. The rules provide that the oversight of internet suspension is to be exercised by the Review Committee, which comprises entirely of executive members. This severely compromises the conduct of a fair assessment since a single arm of government machinery carries out the authorisation, conduct, and review, which constitutes a conflict of interest.
The Review Committee is empowered under the Suspension Rules only to “record its findings” but not set aside an illegal suspension order, thus making it a toothless committee. Moreover, permitting five days for the review is not reasonable since most internet shutdowns run for less than five days; hence, the review exercise fails to work as a procedural check. Further, the rules do not mandate the publication of the suspension orders or the Review Committee's findings. Transparency is required to ensure that aggrieved parties can access the orders to challenge the suspension in court.
Despite the enactment of the Suspension Rules in 2017, internet shutdowns have continued to be imposed under the CrPC. Its Section 144 holds a clear preference over the Suspension Rules because it does not even remotely contain the procedural safeguards the said rules provide. The decisions under Section 144 are taken at the District Magistrate level rather than the Home Secretary level, thus, no review committee is required to examine the validity of the order in a time-bound manner, and no periodic review is provided. These factors make it pragmatically superior.
The rules provide that the oversight of internet suspension is to be exercised by the Review Committee, which comprises entirely of executive members.
This also raises an important question: Should it be legally permissible for governments to resort to Section 144 of the CrPC—a general law providing for maintaining public order—despite the availability of legal regimes that specifically deal with internet shutdowns? According to the well-known legal maxim
generalia specialibus non derogant, “if a special provision has been made on a certain matter, that matter is excluded from the general provisions”. The Supreme Court has
applied this principle to exclude general statutes from fields covered by special laws.
Need for reforms
In January 2020, the Supreme Court in
Anuradha Bhasin v. Union of India held that access to information via the internet is a fundamental right under Article 19(1) of the Indian Constitution. The three-judge bench order further observed that internet shutdowns are a ‘drastic measure’, which may be imposed only if it is lawful, necessary, and proportionate and only after publishing internet suspension orders.
Though the said judgement has come as a ray of hope, it is significant to note that the State governments and Union Territories have been
issuing internet suspension orders, going against the spirit of the
Anuradha Bhasin directions. This is primarily because the Union Government hasn’t given statutory recognition to the directions laid down by the Supreme Court.
In September 2022, to make a legal framework more attuned to the realities of the 21
stcentury, the Ministry of Communications released the 40-page
draft of the Indian Telecommunications Bill, 2022. However, the proposed replacement has turned a blind eye to appeals for reforms in internet suspension rules, including the landmark ruling of Anuradha Bhasin. The draft Bill provides an explicit legal provision for suspending internet services in Chapter 6, maintaining the root and spirit of the colonial law.
This draft represents a missed opportunity to incorporate proactive publication and periodic review as a mandatory duty within the text of the Telecom Suspension Rules, which would have increased awareness about these judicially introduced requisites and augmented compliance by the government. The draft needs to incorporate the Parliamentary Standing Committee's
recommendations on internet shutdowns. There is a need to codify defined parameters that constitute a public emergency and public safety and implement a mechanism to decide the merit of an internet shutdown. The composition of oversight review committees should be more inclusive by including non-official members such as retired judges and public members.
The draft Bill provides an explicit legal provision for suspending internet services in Chapter 6, maintaining the root and spirit of the colonial law.
Moreover, the rules must be in tune with changing technology to ensure minimum disturbance to the public. The Committee recommended that the DoT formulate a policy that selectively restricts specific services instead of a blanket shutdown. This will ensure that no inconvenience to the general public is caused and the objectives such as curbing misinformation, etc. are also met.
Conclusion
There is no gainsaying that in today's world, the internet is the most utilised and accessible medium for exchanging information. The current legal regime governing internet shutdowns must be overhauled to place greater emphasis on transparency and accountability. A proper mechanism for assessing the justifiability of a shutdown must be implemented. It should also establish clear guidelines and protocols for implementing internet shutdowns to ensure that they are only used in exceptional circumstances.
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