Union government reiterates that it does not need to maintain records of internet shutdowns in the country

The need to maintain a centralised record of internet suspension Orders has been recommended to the Union government and the department of telecommunications from time to time. However, the government continues to maintain a lackadaisical attitude towards these recommendations as according to it there is no need to maintain such records when the law enforcement agencies ordering suspension of telecom services are bound to publish the same.

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"[What is the number of] internet shutdowns by law enforcement agencies, like the ones in Manipur and Punjab, in the country during the last three years?"

This was one of the questions raised by the Indian National Congress member of Lok Sabha Ravneet Singh Bittu during the monsoon session of the Parliament.

Bittu also raised a question about the estimated economic losses incurred due to such shutdowns. He asked about the steps the government intends to take to minimise economic losses due to internet shutdowns and explore alternatives to such actions.

The recent blanket internet shutdowns in Punjab and Manipur through pre-drafted template Orders shed light on the mechanical manner in which law enforcement agencies suspended telecom services.

Suspension of telecom services, including internet, is permitted 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 law limits the grounds on the basis of which internet can be suspended to "public emergency" and "public safety".

Despite having access to such a narrow mandate, law enforcement agencies order internet shutdowns at the drop of a hat, sometimes for an indefinite period of time. This has earned India the dubious distinction of being the internet shutdown capital of the world.

The suspension of telecom services in Punjab during the massive manhunt for Sikh preacher and activist Amritpal Singh Sandhu earlier this year was India's 700th shutdown. 

The record for the longest internet shutdown imposed by India remains the one in Jammu & Kashmir after the abrogation of the special status of the state under Article 370 (temporary provisions with respect to the state of Jammu & Kashmir). The shutdown extended over a mammoth 552 days, from August 4, 2019 to February 6, 2021.

So it might come as a shock that in a country where governments are so enamoured of internet shutdowns, law enforcement authorities do not maintain a record of these shutdowns.

But it has been a consistent position of the authorities in India, despite the Supreme Court's guidelines in Anuradha Bhasin versus Union of India (2020) and the recommendations made in the 26th Report of the Standing Committee on Communications and Information Technology which were made public earlier this year in its thirty-seventh report that keeping official records of internet shutdowns in unnecessary.

So Minister of Electronics and Information Technology Rajeev Chandrasekhar's reply to Bittu's questions was on expected lines.

As per Chandrasekhar, "Centralised data of [the] number of internet shutdowns is not maintained by the government of India."

"There is no report available with the government that assesses the economic loss incurred due to internet shutdowns," Chandrasekhar added.

Guidelines in Anuradha Bhasin

In Anuradha Bhasin, the Supreme Court observed that an internet suspension must not be for an indefinite period, the suspension Orders must be proactively published and periodically reviewed as per the procedure established under the 2017 Suspension Rules.

Rule 2(5) of the 2017 Suspension Rules mandates the establishment of a "review committee" to ensure whether telecom services suspension Orders adhere to legal requirements.

In Anuradha Bhasin, the court noted that although the 2017 Suspension Rules do not provide for publication or notification of telecom services shutdown Orders, it is a settled principle of law and of natural justice that an Order, "particularly one that affects lives, liberty, and property of people", must be made available. 

The judgment reads: "Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not. We are, therefore, required to read in the requirement of ensuring that all the Orders passed under the 2017 Suspension Rules are made freely available, through a suitable mechanism".

After the Anuradha Bhasin judgment, Rule 2A was inserted into the 2017 Suspension Rules through an amendment in 2020, which required that suspension Orders issued by the competent authority shall not be in operation for more than fifteen days.

This amendment somewhat complied with the Supreme Court's recommendation that the suspension of telecom services must not be indefinite. However, it did not lay down any mechanism for proactively publishing suspension Orders and reviewing such Orders.

Parliamentary standing committee's recommendations

In its 26th report, which was tabled in the Parliament in December 2021, the parliamentary committee on communications and information technology recommended the establishment of a "verifiable mechanism" to maintain "a centralised database of all internet shutdown orders in the country".

As per the report, the database must "contain various types of information on internet shutdowns, such as the number of times suspension has been imposed, reasons, duration, decision of the competent authority, decision of the review committees and also whether any internet shutdown has been ordered by resorting to Section 144 (power to issue order in urgent cases of nuisance or apprehended danger) of Code of Criminal Procedure."

The committee's report further observes that the information related to suspension Orders must also be made available in the public domain as doing so will not only help in ensuring transparency but also guide course correction in case of deviation from the Rules or procedures. 

The report says that by making such information public, the impact of the telecom services shutdown on the economy can also be gauged.

The suggestion to establish an official record of internet shutdowns was based on the fact that neither the department of telecommunications nor the ministry of home affairs has any mechanism to review how many states have issued internet suspension Orders. 

Such records are necessary to check whether strict compliance with the legal requirements has been made or not, the 26th report of the parliamentary committee states.

However, in the 37th report of the parliamentary committee, it has been revealed that the telecom department, in a note on the action it had taken, had replied that the home ministry and the department were of the opinion that there is "no requirement to maintain any such centralised database".

The telecom department further pointed out that after the judicial review of the Telecom Suspension Rules, 2017 by the Supreme Court in Anuradha Bhasin and the subsequent amendment in the Rules in 2020, the competent authority issuing a suspension Order is bound to proactively make the Orders available in the public domain.

The parliamentary committee, in its 37th report, did not accept the reasons given by the telecom department and complained that important recommendations had been overlooked by the government. 

The committee found it unfortunate that no efforts had been made by the telecommunications department or the ministry of home affairs to implement their recommendations.

It reiterated that sincere efforts must be made by either the telecom department or the home ministry to maintain a centralised record of telecom service shutdowns on the lines of the database maintained by the National Crime Records Bureau (NCRB).

NCRB regularly collects data on various aspects of crimes, including communal violence.

Internet Freedom Foundation on maintaining a centralised database on internet shutdowns 

The Leaflet spoke to the Internet Freedom Foundation's (IFF) team member, Gayatri Malhotra on whether the law requires the Union government to maintain a database on the number of internet shutdowns. 

IFF is a New-Delhi-based non-governmental organisation that advocates for digital rights and liberties. 

Malhotra said that the Supreme Court, in Anuradha Bhasin observed that the orders suspending internet and telecom services "must be published" in accordance with the "principles of natural justice".

Malhotra clarified: "Nevertheless, the specific publication mechanism was not defined in the Anuradha Bhasin judgment, and it did not establish the requirement of creating a database for internet and telecom suspension Orders".

"However the recommendations of the 26th Report of the Standing Committee on Communications and Information Technology is viewed as a positive step as it can help promote a culture of accountability and transparency," Malhotra averred. 

She added that a database facilitates the assessment of whether internet shutdowns adhere to the principles of proportionality and other guidelines laid down in Anuradha Bhasin's judgment.

Malhotra concluded: "Despite the existing 2017 Suspension Rules and Anuradha Bhasin's guidelines, state governments continue to impose arbitrary shutdowns. Doing so is not in compliance with the existing legal regime and safeguards."