In what is one of the first victories in Indian courts against internet shutdowns, one of its most egregious uses has been put to a stop in Rajasthan. The person to thank for this is Dhirendra Singh Rajpurohit, who runs a hardware store in Jodhpur. Dhirendra, you are an internet hero. We salute you and your team of lawyers!
What happened ?
A few months ago, Dhirendra suffered a disruption to his life and work due to internet shutdowns in Jodhpur. He was aware of the public interest in the issue. The frequent disruptions were caused to prevent cheating in entrance examinations for the conduct of the Rajasthan Police Recruitment examination. Aggrieved by it, he filed a writ petition on it in the High Court.
While initially the Rajasthan state government in its reply resisted the writ petition, subsequently in its additional affidavit it recanted. It stated that its department of Home Affairs had issued a set of departmental instructions to all the Divisional Commissioners in Rajasthan to cease making orders to shutdown the internet for examinations. It almost seemed that Rajasthan Government was spurred into such action by Dhirendra's petition because this seemed to completely satisfy the reliefs.
In view of this nothing remained to be argued, and the High Court disposed off his petition on November 28, 2018. Without the need for arguments Dhirendra scored an incremental, yet important judicial victory against Internet Shutdowns in India.
We encourage our more detail oriented readers to either go through the bare case pleadings and the court orders that we have made available online. This is with the objective of putting out these public documents for wider release and transparency. We also want to thank Harsh and Akash for volunteering their time and skills. We also have a translated copy of an important letter issued by the Home Affairs Department of Rajasthan.
We also encourage people to follow the detailed post over at SFLC.in. They have been running an influential shutdown tracker which is built off media reports and RTI responses and has been a data point for establishing that India has the highest number of internet disruptions, globally. This is a national shame, and this is why this case and the outcome in it becomes important.
Why is it an "incremental" victory?
Because internet shutdowns can, and will still keep happening. Yes, even in Rajasthan.
- A limited challenge lead to a limited victory: This is because Dhirendra's petition only challenged the exercise of the power of internet disruptions in a specific case (a specific order due to the conduct of examinations), not the legal rules (Temporary Suspension of Telecom Services Rules, 2017) which permitted it. As per us these rules which permit shutdowns are per se unconstitutional as a shutdown is disproportional and blocks legitimate speech. We have also supported research on how these rules are badly phrased and were created in a process of absolute secrecy. These rules continue in operation and we can expect internet shutdowns in future, albeit with decreased frequency and not for competitive examinations at-least in Rajasthan.
- The result of a concession: The order of the Hon'ble High Court is the result of a concession by the State Government. This is an important step forward in court centered advocacy actions in India which is the world leader on internet shutdowns. It shows the Government overreach can be corrected by judicial intervention, so while the order is not a extensively reasoned judicial opinion, it is a modest victory. In time all of these add up for greater impact and show the strength of citizens who fight for their fundamental rights in the digital age. We would specifically like to thank Dhirendra's lawyers, Nitin Goklani and Pravin Vyas, Advocates for conducting this case and ensuring a positive outcome. We would also like to thank Advocate Abhishek Mehta, who was following up and updating us on the case proceedings.
- Concerns remain: This case was disposed off due to letter dated 22.10.2018 which is recorded in the Order of the High Court. This letter while it records, "to stop shutting down the Internet during any kind of exam in the state" which forms the basis of the High Court order. But it is important to take a step back and look at who was ordering these shutdowns? The answer to this is in the letter which states that, "the State Government has authorised all Divisional Commissioners through an Order dated 02.09.17". Now it becomes important to go into the issue whether these Divisional Commissioners are allowed to do this as per the legal rules? As per us, the answer is no. Divisional Commissioners cannot be delegated authority which is fixed under Rule 2 of the Suspension of Telecom Services Rules, 2017.
So while the overall result is positive, we will keep pressing on with the follow up to our #KeepUsOnline campaign which gathered 15,000 individual and 80+ organisational sign-ups last year.
What is IFF doing about it?
A few things. After preparing a legislators brief, we have been reaching out to the offices of many lawmakers across party lines to have conversations on issues of digital rights in which internet shutdowns features prominently. We are also exploring other parliamentary strategies for the Winter and Budget sessions working with a team of volunteers including Arpitha, Hardik, Akash and many others.
At the same time we have filed a fresh RTI with the Department of Telecom, specifically asking them on whether any advisories or departmental orders have been issued by them to curtail shutdowns. We will be picking up pace in our work and are hopeful that we can ensure important wins for the public on digital rights next year.
We have also sent a legal notice to the Government of Rajasthan stating that their Order dated 02.09.2017 sub-delegating authority for internet shutdowns to Divisional Commissioners is illegal and should be withdrawn.
Link to Documents
- Drive link of case pleadings
- Translated version of the Letter Dated 22.10.2018 (Pages 110-112)
- Order of the Hon'ble High Court dated 28.11.2018
- RTI dated 3.12.2018 to the DOT
- Legal Notice dated 3.12.2018 to the Government of Rajasthan
- Read our past work on shutdowns here and here
- Work: The Internet Freedom Foundation (IFF) is an indian civil liberties organisation working on technology and fundamental rights. We work across a wide spectrum, with expertise in free speech, digital surveillance and privacy, net neutrality and innovation to champion of freedom in the digital space. To ensure that people in the world's largest democracy use the internet with liberty guaranteed under the Constitution of India.
- Transparency: We are a non-profit registered under Section 80G of the Income Tax Act. Aimed towards greater accountability to our donors who are ordinary internet users in India like you we have published detailed financial information that is updated regularly.