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The internet enables one to exercise many fundamental rights such as that of speech and expression, and livelihood. Punjab's pre-drafted internet suspension order indicates an administrative non-application of mind and lacks the requirement of proportionality.
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IN Punjab, 27 million lives were impacted due to the state's recent total internet blackout. On March 18–19, internet services were suspended for 24 hours by Punjab police amidst the manhunt to arrest Khalistani separatist and Sikh preacher Amritpal Singh Sandhu, chief of the social organisation Waris Punjab De.
Although some of Sandhu's aides have already been arrested, he remains a fugitive and is likely to be arrested under the National Security Act, 1980.
As per the order (screenshot provided above) issued by the Department of Home Affairs and Justice, Government of Punjab on March 17, all mobile internet services, all SMS services (excluding banking and mobile recharge), and all dongle services (except for voice calls) were suspended in the exercise of the power conferred under Section 5 (power for government to take possession of licensed telegraphs and to order interception of messages) of the Indian Telegraph Act, 1885 read with Rule 2 of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
“The Supreme Court, in Anuradha Bhasin versus Union of India (2020), had held that the fundamental rights to freedom of speech and expression, and to carry on any trade, profession or business under Article 19(1)(a) and (g) respectively of the Constitution, includes the use of the internet as a medium, making it constitutionally protected.
According to the order, "…[C]ertain sections of the society are likely to threaten public order by incitement to violence as also resorting to widespread violence with an aim to stoke and cause communal tension…"
The order further stated: "...[T]hese sections of the society widely use social media platforms such as Facebook, Twitter, Instagram, WhatsApp, etc, and also Short Message Service (SMS) for spreading of inflammatory material and false rumours, to provoke mobilization of mobs of agitators and demonstrators…There is a clear continuation of potential of threat to public safety, disruption of public utilities, damage to public assets and amenities and disturbance of public law and order in the state of Punjab on account of misuse of mobile internet services, SMS services, and other dongle services…"
Twitter accounts of journalists and several other persons, based in Punjab as well as elsewhere in the world, were also withheld. Over one hundred persons associated with Sandhu or his cause have been arrested so far. Many Sikhs protested outside the High Commission of India in London against the alleged arbitrary arrests of people and the internet blackout in Punjab.
On March 20, Punjab Inspector General (Headquarters) Sukhchain Singh Gill, at a press conference in Chandigarh, said that the suspension of the internet was to maintain public order. With regard to further suspension, a call would be taken by examining the situation, he stated. However, when asked about the legal criteria to suspend the Twitter accounts of journalists, Gill declined comment.
The internet blackout was extended till March 23 in the districts of Tarn Taran, Ferozepur, Moga and Sangrur, the sub-division Ainala in Amritsar, and the areas adjoining YPS chowk and Airport Road in SAS Nagar district, while being lifted in the rest of the state.
Before the 2017 Rules had been notified, any measure restricting the general use of the internet or even internet shutdowns was procedurally regulated by the district magistrates exercising their powers under Section 144 (power to issue order in urgent cases of nuisance or apprehended danger) of the Code of Criminal Procedure, 1973 (CrPC). This is a mechanism to allow states to maintain public peace.
"The Supreme Court, in Anuradha Bhasin versus Union of India (2020), had held that the fundamental rights to freedom of speech and expression, and to carry on any trade, profession or business under Article 19(1)(a) and (g) respectively of the Constitution, includes the use of the internet as a medium, making it constitutionally protected." The court had clarified that the power under Section 144 of the CrPC is inclusive of certain procedural safeguards, including that of proportionality.
“As per Anuradha Bhasin, for passing an order under Rule 2(1), the authorised officer's reasoned order should not only indicate the necessity of the measure but also what the "unavoidable" circumstances were that compelled them to pass an order.
In Justice K.S Puttaswamy (retired) versus Union of India (2017), the Supreme Court observed that a three-fold requirement must be fulfilled when restricting the right to privacy (including informational privacy), which is an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. These are the existence of a law, the requirement of legitimacy and proportionality.
This three-hold test is not just limited to the restriction of privacy, but is to be applied to a broader spectrum where restrictions on fundamental rights are concerned, as these are guarantees against the arbitrariness of State action.
Proportionality acts as a safeguard against arbitrary State action to ensure that the nature and quality of encroachment on the right are not disproportionate to the object and purpose of the law.
In this context, Anuradha Bhasin stated that an indefinite order of internet suspension is unconstitutional.
Now, the order to suspend telecom services is currently regulated under Section 5 of the Telegraph Act read with Rule 2 of the 2017 Rules. Only on the grounds of 'public emergency' or 'in the interest of public safety' can the internet be suspended.
As per the 2017 Rules, in ordinary circumstances, the suspension order shall be made by the secretary to the Union Ministry of Home Affairs at the Central level, or by the secretary to the state government's home department at the state level, as per Rule 2(1). Only in unavoidable circumstances, as per the sub-rule, the order can be made by an officer not below the rank of a Joint Secretary, who is duly authorised to pass such an order, and the same shall be confirmed by the competent authority within 24 twenty-four hours, failing which the order will cease to exist.
Further, the order, as per Rule 2(2), must be a reasoned order and the copy of the order shall be forwarded to the concerned review committee formed under Rule 2(5) latest by the next working day.
As per Anuradha Bhasin, for passing an order under Rule 2(1), the authorised officer's reasoned order should not only indicate the necessity of the measure but also what the 'unavoidable' circumstances were that compelled them to pass an order. This rule integrates the proportionality analysis with the 2017 Rules.
Under the Rules, the internet shutdown shall be supervised by the review committee within five days from the date on which suspension was notified, as per Rule 2(6). It has to record its findings on whether the directions issued under Rule 2(1) are in accordance with Section 5(2) of the Telegraph Act.
The review committee can be constituted at the Union or state level as per the circumstances. The constitution of the respective review committee is given under Rule 2(5). The review committee to be constituted by the Union government shall consist of the Cabinet Secretary as the chairman; and the secretaries to the legal affairs department, Union Ministry of Law; and Department of Telecommunications, Union Ministry of Communication.
At the state level, the committee shall consist of the state's chief secretary as the chairman, and the secretary law or legal remembrancer in-charge, legal affairs and any secretary to the state government (other than the home secretary) as its members.
The 2017 Rules were found to be inadequate by the Supreme Court in Anuradha Bhasin. The court observed that the Rules have certain gaps which can only be filled by the legislature.
Moreover, the court flagged that although the word 'temporary' has been used in the title of the 2017 Rules, there is no indication of the maximum duration for which the suspension order remains operative. As a temporary measure, the court directed that the review committee must conduct a periodic review within seven working days of the previous review under Rule 2(6).
It must also determine whether the restrictions are still in compliance with the requirement of Section 5(2) of the Telegraph Act and whether the restrictions continue to fulfil the criteria of proportionality.
As per Section 5(2), the suspension of internet services is stipulated on the necessary requirement of the 'occurrence of any public emergency' or 'in the interest of public safety'. In People's Union for Civil Liberties (PUCL) versus The Union of India & Anr. (1996), the Supreme Court examined the constitutional validity of Section 5(2). It stated that the occurrence of a public emergency or the interest of public safety is a sine qua non for the application of Section 5(2).
The case concerned the alleged phone tapping of politicians by the Central Bureau of Investigation.
The court explained public emergency as "…prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action." Whereas, public safety was termed as "the state or condition of freedom from danger or risk for people at large".
Both the grounds are not secretive conditions, and would be apparent to a reasonable person.
The duration question was tackled to an extent by a November 2020 amendment inserting Rule 2A in the 2017 Rules. According to this new rule, the suspension order issued by the competent authority under Rule 2(1) shall not be in operation for more than fifteen days.
However, the constitution of the review committee remains a concern because it consists of members from the executive branch. No independent member is appointed, which raises serious questions about the lack of accountability and transparency.
Nevertheless, the two grounds under Section 5 of the Telegraph Act remain undefined in the parent legislation. In the absence of a specific definition or indicators of these requirements, it has been invoked in situations like during examinations to prevent students from cheating in states like Assam and Rajasthan. Gujarat was the first state to suspend the internet to prevent cheating during exams in 2016.
All these orders are based on mere apprehension.
Last year, at the Calcutta High Court in Ashlesh Biradar versus The State of West Bengal, the petitioner challenged the temporary suspension of the internet under Section 144 of the CrPC by the West Bengal government to apparently control cheating in the state's madhyamik examination.
Apart from the orders found to be without jurisdiction, the high court observed that the state has various alternative means to prevent the use of unfair means in the examination. It said that the internet suspension orders prima facie do not satisfy the test of proportionality.
“The preventive orders in Punjab, which seem to be based on a pre-drafted template, are problematic. They do not fulfil the criteria of a reasoned order. They do mention why internet services are suspended, but do not give any specific reason for that. In fact, there is not even one mention of Sandhu. The reasons given are stated in vague terms.
In 2019, the Assam government suspended the internet to rein in the protests that erupted over the Citizenship (Amendment) Act, 2019. Petitions challenging the same were filed by journalist Ajit Kumar Bhuyan and advocates Bonoshri Gogoi, Randeep Sharma and Debakanta Doley.
A division bench of Justices Manojit Bhuyan and Saumitra Saikia of Gauhati High Court eventually ordered the government to restore internet services. It observed that the state can take steps to curb the dissemination of "explosive messages and videos" on various social media platforms that have the tendency to incite violence without wholly suspending internet services.
A writ petition filed by Delhi-based non-profit organisation, the Software Freedom Law Centre (SFLC), in Software Freedom Law Centre versus State of Arunachal Pradesh & Ors. (2022), challenging the constitutionality of internet shutdowns during exams, is pending before the Supreme Court.
A Supreme Court bench of the then Chief Justice of India (CJI) U.U. Lalit and Justices S. Ravindra Bhat and P.S. Narasimha, in its September 9, 2022 order in this matter, issued notice to the Union Ministry of Communication to respond, indicating whether there is a standard protocol to suspend the internet to prevent cheating and malpractices during exams.
The matter is now listed before a bench headed by current CJI Dr D.Y. Chandrachud.
The preventive orders in Punjab, which seem to be based on a pre-drafted template, are problematic for a lot of reasons. First, they do not fulfil the criteria of a reasoned order. They do mention why internet services are suspended, but do not give any specific reason for that. In fact, there is not even one mention of Sandhu. The reasons given are stated in vague terms, which may justify the need for pre-drafted templates.
It should be noticed that the second order (screenshot provided below), which extended the internet ban for another 24 hours, is exactly the same as the first order.
Further, as per Anuradha Bhasin, the complete, broad suspension of telecom services is a drastic measure and must be considered by states only when it is "necessary and unavoidable". The state must assess alternative measures that are less intrusive. There is no evidence to suggest that the Punjab police tried to explore less intrusive measures.
In any case, there cannot be a blanket order which is usually not considered as proportional. In Anuradha Bhasin, the Supreme Court, while exploring the procedural safeguards the magistrate has to adopt, clearly stated that no blanket order can be made under Section 144 of the CrPC.
Twitter accounts of, among others, many journalists who were closely covering Sandhu and his manhunt, have been suspended. The displayed message on these accounts shows that they have been withheld "in response to a legal demand".
“India tops the list of countries with the most internet shutdowns in 2022. It witnessed 84 shutdowns, the most of any country for the fifth consecutive year.
There is no information on what legal criteria have been invoked to temporarily suspend these accounts.
Below is a list of a few suspended Twitter accounts:
Parteek Singh Mahal, a journalist for the Hindustan Times, tweeted: "Shockingly, the Twitter handles of Punjab-based journalists, who are continuously reporting on #AmritpalSingh incident, have been withheld in India. While there is no unrest in #Punjab on the ground, why do authorities want to make it look like turmoil?"
As per the Twitter Help Centre, immediate notice has to be given to the affected users unless there is express prohibition against doing so. The notification includes a copy of the takedown request. However, none of the suspended accounts have admitted to having received notices.
Unfortunately, as per the non-profit organisation Access Now's #KeepItOn coalition report titled 'Weapons of Control, Shields of Impunity', India tops the list of countries with the most internet shutdowns in 2022. It witnessed 84 shutdowns, the most for any country for the fifth consecutive year, followed by Ukraine, Iran, Myanmar, Bangladesh, Jordan, Libya, Syria and Turkmenistan.
According to the real-time internet shutdown tracker by SFLC, a one of its kind database in India, central and northeast and north-west Punjab saw most of the internet shutdowns last year. Districts like Tarn Taran, Shahid Bhagat Singh Nagar, Kapurthala, Jalandhar, Firozpur, and Hoshiarpur saw a total of four internet shutdowns each.
The Hindu has reported that these shutdowns have had an adverse economic impact as most businesses are now dependent on online transactions. The irony lies in the fact that India continues to promote itself in the area of digital payments while simultaneously making its name as the nation most prone to most internet shutdowns.
Internet services are not just essential to exercising fundamental rights, but also to reporting flagrant violations of them.
The Indian government has imposed the most internet shutdowns, 418 in number, in Jammu and Kashmir, followed by Rajasthan and Uttar Pradesh. Now, with the shutdown in Punjab, this was India's 700th internet shutdown, which remains the highest in the world.
The SFLC's internet shutdown tracker recorded India's first internet shutdown in Jammu and Kashmir on January 26, 2012, as per the report titled 'Let The Net Work: Internet Shutdowns in India 2022'.
It should be noted that the Union government does not have any mechanism to record internet shutdowns.
The recent 37th report of the Parliamentary Standing Committee on Communications and Information Technology disclosed that its previous recommendations to have a centralised database to record the number of internet shutdowns ordered by states have not been complied with.
Further, the committee had recommended that the composition of the review committee must be changed to include non-official members to ensure checks and balances. It also said that the Union government is not making any record of the number of suspension orders cancelled, if any, by the review committee.
But no efforts were made to consider this. The Union government instead answered that the review committee consists of a law secretary who is a judicial officer and that is enough to provide a balanced perspective.
Meanwhile, internet shutdowns in India continue to remain mechanical.
