Temporary Suspension of Telecommunication Services Rules, 2024: An exception that threatens to become the rule

The normalisation of emergency powers proposed under the Temporary Suspension of Telecommunication Services Rules, 2024 is a step down a dangerous path that leads away from the rule of law, write Prashant Narang and P. Puneeth.

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IN a move that should concern every citizen who values liberty and the rule of law, the department of telecommunications has released the draft 'Temporary Suspension of Telecommunication Services Rules, 2024' under the Telecommunications Act, 2023.

These draft Rules, when brought into force, would supersede the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 issued under the Indian Telegraph Act, 1885.

While ostensibly aimed at providing a framework for service suspensions during emergencies, these draft Rules, like the one currently in force, represent a dangerous step towards normalising extraordinary State powers and undermining the very foundations of our democratic society. Strictly speaking, they also do not conform to the principles of the rule of law.

The rule of law requires that government actions be constrained by fixed rules announced beforehand, ensuring predictability and preventing arbitrary exercise of power. The proposed Rules, however, fail this crucial test in several ways.

Firstly, the justifications for suspending telecom services remain vaguely defined, referencing only Section 20(2)(b) of the Telecommunications Act, 2023.

The said provision only reproduces, as Justice Krishna Iyer had said, "statutorily sanctified phrases" without defining them.

They are vague and, thus, capable of being interpreted in many ways. This lack of specificity opens the door to overbroad interpretation and potential misuse or abuse.

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Such overbroad provision leaves ample scope for the kind of arbitrariness that Friedrich Hayek precisely warned against. In a truly free society under the rule of law, citizens should be able to foresee with a fair amount of certainty how the authority will use its coercive powers.

With these vague provisions, no citizen can ever foresee with any amount of certainty when and under what circumstances authorities can suspend telecommunication services, which includes the Internet.

In this digital age, the Internet has become one of the main means of accessing goods and services and other essential activities. At times, its suspension may have catastrophic effects on the lives and livelihood options of people.

Thus, a law that provides for the suspension of the Internet and other forms of telecommunication services should be, as far as possible, clear, precise and unambiguous.

The draft Rules establish review committees at both the Union and state levels to assess the validity of suspension Orders. These committees remain unchanged from the 2017 rules, maintaining the same composition at both levels.

At the Union level, the review committee consists of the cabinet secretary as chairman, with the secretary of legal affairs and the secretary of the department of telecommunications as members.

For states, the chief secretary chairs the committee, joined by the secretary of law or legal remembrancer and a secretary to the state government (excluding the home secretary).

These committees are tasked with meeting within five calendar days of a suspension Order being issued to determine whether it complies with the Act's provisions.

The composition of the review committees— both at the Union and state levels— lacks independent or judicial oversight. The structure of the review committees— composed entirely of executive branch members— fails to provide the checks and balances necessary to prevent abuse of power.

What the draft Rules provide for is just a review of telecommunication suspension Order(s) by peers. By providing for this ineffective review mechanism, these Rules, both the existing and the draft, strategically exclude the possibility of approaching the judiciary for immediate relief as the judiciary often insists on exhausting alternative remedies before seeking judicial intervention.

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The draft Rules also allow for suspensions to be in effect for up to five days before any review takes place. This retroactive oversight mechanism falls far short of clear, pre-announced rules. It creates a window where citizens' rights can be infringed without any immediate recourse, a scenario antithetical to the rule of law.

By codifying and normalising what should be extraordinary measures, we risk turning emergency powers into a paradigm of government. Though this power to suspend telecommunication services is contemplated to be used only "on the occurrence of any public emergency or in the interest of public safety", neither 'public emergency' nor 'public safety' are defined under the Act or the Rules.

Further, the words "in the interest of" provide greater leeway for the competent authority to exercise this extraordinary power on mere suspicion of threat to public safety.

The danger here is not just in the specific instances of telecom suspensions, but in the broader precedent it sets for expanding State power at the expense of individual liberties.

The provision allowing joint secretaries to issue suspension Orders in "unavoidable circumstances" is particularly concerning. While requiring confirmation within 24 hours, it still creates a mechanism for quick implementation of these extraordinary measures with reduced oversight.

This is precisely the kind of erosion of normal legal protections that Giorgio Agamben warned could lead to a permanent state of exception.

It is worth noting that while the Rules limit individual suspension Orders to 15 days, there is no explicit prohibition on issuing consecutive Orders. This loophole could potentially allow for indefinite suspensions, a scenario that would make a mockery of the term "temporary" in the short title of the draft Rules.

As we consider these draft Rules, we must ask ourselves: Are we ready to normalise the exception and risk it becoming the rule?

The normalisation of emergency powers, as these draft Rules propose, is a step down a dangerous path— one that leads away from the rule of law and towards a state where exception becomes the norm. It is a path we must refuse to tread.