tl;dr
Remember the Rajasthan Government’s response to our RTI, where it admitted that Rajasthan’s Review Committee does not meet to review internet shutdown orders, and only confirms them by circulation? Applicable Indian law requires governments to publish all internet shutdown orders in the public domain, and these orders must be reviewed by a committee of high-level government officials, to ensure that they are proportionate, lawful and necessary. We found Rajasthan government’s Review Committee procedures concerning and have written to the Chairperson of the Review Committee, i.e. the Chief Justice of Rajasthan urging greater scrutiny of shutdown orders.
Why should you care?
Given the impact of internet shutdowns on fundamental rights in addition to health, education and commerce, it is essential that proper oversight is exercised over orders for internet shutdowns. The Review Committee established under the Telecom Suspension Rules is the only mechanism for oversight of internet shutdown orders, but in Rajasthan, RTI responses have revealed that the Review Committee does not meet or apply its mind to the review process at all! If the Review Committee does not diligently oversee and review orders for internet suspension, there is a higher risk that the power to shut down the internet will be misused by governments, as a result of going completely unchecked.
This is deeply concerning because the internet is suspended in Rajasthan more than in any other state in India, and many of these suspensions take place even when there is no public emergency or threat to public safety.
Background of our RTI
The Supreme Court in Anuradha Bhasin directed the executive to publish internet suspension orders and to ensure the orders are lawful, necessary and proportionate. Yet, the executive continues not to comply with these directions. We regularly file right to information (‘RTI’) applications with governments, seeking responses on whether the executive is complying with the directions passed by the Supreme Court.
On 12th February 2022, we filed an RTI application asking the State of Rajasthan several questions about internet shutdowns, including:
“Q7. Whether your state has constituted a Review Committee under Rule 2(5) of the Telecom Suspension Rule?
Q8. Please provide copies of all the findings of the Review Committee issued under Rule 2(6) of the Telecom Suspension Rules since 10.01.2020?”
While Questions 1 to 6 were transferred to the Divisional Commissioners of Rajasthan, the State Public Information Officer (“SPIO”) responded to Questions 7 and 8 on 23rd February 2022. In response to question 7, the SPIO said that the Review Committee does not record findings while evaluating the legality of internet shutdown orders, but merely confirms them. In fact, per the SPIO’s response, the Review Committee does not even convene meetings to record its findings, and instead receives internet shutdown orders by circulation and just confirms them!
This is patently illegal under Rule 2(6) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Telecom Suspension Rules’). Merely confirming internet shutdown orders, without recording findings, or even convening meetings to deliberate on them, shows a serious non-application of mind on the part of the Review Committee, and entirely undoes the oversight mechanism for internet shutdowns instituted under the Telecom Suspension Rules, in addition to undermining the fundamental rights of Indians. Also, this is particularly concerning in the case of Rajasthan, where the internet is shut down more than in any other state in the country.
We wrote to the Chief Secretary of Rajasthan urging greater scrutiny of shutdown orders
Concerned by the response of the CPIO, we wrote a letter to the Chief Secretary of the Government of Rajasthan on 21st March 2022, in her capacity as the Chairperson of the Review Committee constituted by the Government of Rajasthan. In the letter, we raised our concerns regarding the impropriety of the procedure followed by the Review Committee under the Telecom Suspension Rules with respect to internet shutdowns. Accordingly, we urged the Chairperson to:
- Ensure that the Review Committee constituted under the Telecom Suspension Rules convenes in-person within five days of every internet shutdown order issued by the Government of Rajasthan, and records its findings on the legality of the same with reasons;
- Publish the findings of the Review Committee and the minutes of all its meetings, where available, in the public domain, in the spirit of the judgment of the Supreme Court of India in Anuradha Bhasin; and
- Follow all guidelines issued by the Supreme Court of India in Anuradha Bhasin, and the provisions of the Telegraph Act and Telecom Suspension Rules.
The Review Committee has functions defined in law
In India, internet shutdowns are regulated by the Telecom Suspension Rules, which permit the Secretary to the central or state Home Department to suspend internet services. While these rules make it mandatory for reasons to be provided in all orders suspending internet services, the orders are not subject to any judicial/independent review.
We also pointed out to the Chief Secretary of Rajasthan that the only safeguard to prevent misuse of this power rests with the Review Committee, constituted under Rule 2(5) of the Telecom Suspension Rules, which is tasked with exercising oversight with respect to internet shutdowns. The Review Committee is composed of high-level government officials, i.e., the Chief Secretary of Rajasthan, the Secretary, Personnel Affairs and the Principal Secretary, Legal Affairs.
Under Rule 2(6) of the Telecom Suspension Rules, the Review Committee is supposed to convene within five days of each internet shutdown order that is passed, and ‘record its findings’ on whether the order is in accordance with Section 5(2) of the Indian Telegraph Act, 1885, which requires that internet suspension orders be issued only ‘on the occurrence of any public emergency’ or ‘in the interest of public safety’. Moreover, they must only be issued if it is necessary to do so in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, or for preventing incitement to the commission of an offense.
Further, the Supreme Court in Anuradha Bhasin vs Union of India & Others, (2020) 3 SCC 637 directed the executive to publish internet suspension orders and to ensure the orders are lawful, necessary and proportionate. Yet, the executive continues not to comply with these directions. We regularly file right to information (‘RTI’) applications with governments, seeking responses on whether the executive is complying with the directions passed by the Supreme Court.
We have filed a first appeal to this RTI on 28.02.2022, to seek clarity on the response of the Government of Rajasthan, and have asked them to provide copies of findings, in case their review committee does record findings. We are yet to receive a reply from the First Appellate Authority.