[dropcap]T[/dropcap]oday, we are living in a world which is constantly embracing technological wonders, with the “World Wide Web” or the Internet being one of the most distinctive and prominent features of our technosocial era. While now people can communicate with each other sitting in any corner of the planet, provided there’s digital connectivity, global trade has now evolved in keeping with this dynamic digital world. But have you ever imagined a situation where the internet has collapsed and your freedom of communication is severely curtailed?
This leads us to the discussion of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 — commonly known as the Internet Shutdown Rules — a draconian and surreptitious legislation brought about by the Indian government, the leader by many a mile in issuing diktats causing the maximum number of internet shutdowns anywhere in the world. At 128 in 2018 alone, and about 266 instances of internet shutdowns since 2012, India wears the unenviable crown of curtailing internet connectivity because of flimsy political excuses, despite chanting “Digital India” 24 X 7 X 365.
Precisely why, the validity of the Internet Shutdown Rules has been questioned in no uncertain terms by Dr. Shashi Tharoor, a senior leader of the Indian National Congress and Member of Parliament from Thiruvananthapuram, in a letter addressed to D K Gandhi (Chairperson of the Committee on Subordinate Legislation), wherein Tharoor has urged the government to undertake a comprehensive review of the Internet Shutdown Rules.
Internet shutdown refers to a situation wherein the internet traffic is interrupted and shut down, thereby preventing citizens from using internet services on their mobiles, computers and other gadgets for a certain period of time. This is usually done by the administration when the cyberspace poses a so-called “imminent threat” to the security of the public in general. Here’s the technical definition given by experts: “An internet shutdown is an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.”
These Rules were made by the Government of India in August 2017 to prevent “offenders” from using digital platforms. The Rules explicitly give the Central and State Governments the power to restrain the use of telecom services, such as mobile internet, in cases of “public emergencies”. It is important to note that in accordance with the Rules, it is a mandate that the authorised departments of the Central Government and the State Governments can only suspend the internet services when there is a tangible threat to the public safety.
According to a UNESCO report, South Asian countries experienced at least 97 instances of Internet Shutdowns between May 2017 and April 2018 out of which 82 cases accounted to that of India. In addition, the Internet Shutdown Tracker Report of sflc.in, gives a more detailed list of the instances when the telecom services, especially the mobile internet services, were shut down in India, on grounds of public safety. While India interrupted internet services 128 times in 2018 alone, it did so 79 times in 2017, 31 times in 2016, and so on and so forth. What this clearly indicates is that internet shutdown has become a potent tool in the hands of authorities for control and coercion.
While there has been suspension of telecom services in various cases which directly involved public safety, but equally and more so, there have been numerous occasions when the power of shutting down the internet has been abused by the government. For instance, on February 11, 2018, internet services were suspended across some exam centres in the State of Rajasthan to prevent cheating in Rajasthan Eligibility Examination for Teachers (REET). This act of the State government was the misuse of its power as cheating in examinations is not a direct “threat” to the public at large.
The Internet Shutdown Rules: Legal lacunae
Although prima facie it appears that the Internet Shutdown Rules are in place to enhance public safety, a detailed analysis of the same brings to light the various negativities of this dubious legislation. As is rightly pointed out by Dr. Shashi Tharoor in his letter to the Chairman of the Committee of the Subordinate Legislation, D K Gandhi (see above), the Rules suffer from certain defects that have negative consequences for our democratic polity.
Below, we discuss the points raised by Dr Tharoor in his letter to D K Gandhi:
A. Shrinking the Fundamental Right of Freedom of Speech and Expression:
Freedom of speech and expression is a fundamental right granted to the citizens of India. In Shreya Singhal v. Union of India (2015), the Supreme Court of India held that any restriction on the right to free speech must be limited and narrowly defined. A restriction will only be valid if it is reasonable and necessary in order to maintain public order as per Article 19(2) of the Indian Constitution. The Rules have a very wide implication when it comes to freedom of speech and expression. The internet shutdown based on the actions of few people curtails the freedom of speech of the other innocent citizens of the country presuming them to be guilty of using the internet illegally.
B. “Telecom Services” not defined:
There is no comprehensive definition given in the Rules of “Telecom Services”, in the absence of which very broad definition of the term under the Telecom Regulatory Authority of India Act, 1997 has to be taken into consideration which amplifies the scope of telecom services to telephonic services that do not use the internet including voice calls, SMSs and so on. This open-ended definition in turn leads to the mishandling of the power vested in the hands of the Government.
C. Rules devoid of Pre-legislative Consultation:
The Pre-Legislative Consultative Policy, 2014 mandates the Government to draft any law including rules through a transparent process in which public consultation is involved to ensure that all interests are accounted for. But while drafting the Internet Shutdown Rules, there was no publication regarding public consultation which raises the rather fundamental question of whether or not the interests of the stakeholders were taken into consideration at all.
D. Lack of procedural safeguards:
The Rules do not account for proper procedural safeguards, such as prior hearing before an internet shutdown, issuance of notice to the public well in time before the shutdown etc. This becomes a cause of severe inconvenience to the people as their schedules are interrupted due to unnotified internet shutdowns. The Rules also do not provide for a sunset clause, which requires an automatic end of the internet shutdown.
E. The Review Committee:
Rule 2(5) of the Internet Shutdown Rules provides for the constitution of the Review Committee. A clear reading of the rule shows that the Committee is comprised of members working for the government. This raises a question as to the independence of the Review Committee. Not even a single member of the Review Committee belongs to the techno-legal background in order to give expert and independent views while determining the legality of the shutdown orders.
Further, Rule 6 provides that the Review Committee shall meet within five working days of issue of direction for suspension of services due to public emergency or public safety and record its findings whether the directions issued are in accordance with the Act. In five days of time, the internet shutdown is most likely to be lifted, rendering the formation of the Review Committee futile. (Only exceptions are cases of prolonged suspension of internet services, such as the multiple instances of such stoppage of all electronic and digital communication in Jammu and Kashmir.) Tharoor recommends that there should be a provision in the Rules stating that the Review Committee must meet within 24 hours of the issuance of the order of suspension of internet services, instead of five days, which is too long a period to go without the vial digital services.
F. No remedy for illegal internet shutdowns:
The Rules do not provide for the consequence of ordering an illegal internet shutdown. Even when a shutdown is reviewed and held illegal, there is no mechanism to hold the government accountable for the misuse of its power.
Staggering economic cost
The Internet Shutdown Rules, though supposedly made for the benefit of people in emergency situations, suffer from various discrepancies which renders the entire purpose of the Rules futile. Moreover, it has been already reported that that the economic consequence of internet shutdowns is enormous, taken cumulatively. In addition to being a major hurdle in citizens’ fundamental right to freedom of speech and expression, internet shutdowns have led to a loss of Rs 22,154 crore from 2012 t0 2018, according to figures published by the Indian Council for Research on International Economic Relations.
Civil society groups and internet activism
There have formed in response to the curtailing of internet and other draconian digital punishments unique to our technosocial era, a number of civil society groups taking up internet access as a fundamental right of citizens, and creating public awareness about the unscrupulousness and authoritarian nature of internet shutdowns in the country. Platforms like Internet Freedom Foundation, Access Now, among others have been documenting meticulously the pain and hardship faced by citizens owing to internet shutdowns, an have also been devising sharp intellectual arguments against using internet shutdowns as a stick with which to beat dissenting citizens with, especially in conflict zones such as Jammu and Kashmir.
Challenging the Rules in Parliament
On July 31, 2018, Husain Dalwai, a Member of Parliament introduced a statutory motion in the Rajya Sabha asking for the invalidation of the Internet Shutdown Rules but this motion was never taken up by Parliament. Now that Dr Shashi Tharoor has taken up the cudgels, and has sought a comprehensive review, let’s hope there’s some reconsideration and the Rules are re-written with adequate attention to the ground realities and greater accountability from the authorities.
[Nitya Sharma contributed towards writing this article.]