IFF filed RTIs with various state governments seeking copies of internet shutdown orders issued under Section 144, Code of Criminal Procedure, 1973 or the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Besides Bihar, Rajasthan is the second state to provide us access to internet shutdown orders. Our analysis of the orders reveals that these orders have been issued by Divisional Commissioners who lack authority to suspend telecom services and many orders were issued in circumstances which do not seem to satisfy the public emergency/public safety requirement under the law.
Public Emergency or Public Safety: The Two Prerequisites
Suspension of telecom services, that includes within its ambit shutting down of mobile internet and broadband internet services, is carried out under the Temporary Telecom Suspension Rules 2017, on the “occurrence of public emergency or in the interest of public safety”. The power to suspend telecom services on these grounds can be traced back to section 5(2) of the Indian Telegraph Act, 1885. The question then arises is what constitutes “public emergency” or “public safety” in the context of the Telegraph Act?
The meaning of these terms was first explained by the Supreme Court in Hukam Chand v Union of India (1975) and reiterated in PUCL v. Union of India (1997). In Hukam Chand, the Supreme court observed that the occurrence of a "public emergency" is sine qua non for the exercise of powers under Section 5(2), and the competent authority must record its satisfaction as to the existence of such an emergency. Further, an emergency must be a “public emergency” and not any other kind of emergency. In Hukum Chand, certain telephones in a hotel in Delhi were being used to facilitate illegal forward trading. The Administrator of Delhi authorised the police to take temporary possession of the telephones on the ground that “public emergency” exists. However, the Supreme Court did not accept that this constitutes a “public emergency”. Affirming the view adopted in Hukam Chand, the Supreme Court further elaborated the meaning of “public emergency" in PUCL as the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" was defined as the state or condition of freedom from danger or risk for the people at large.
Therefore, the Supreme Court decisions in Hukum Chand and PUCL make it clear that the conditions or the state of affairs which can be considered a public emergency or in the interest of public safety must affect the community at large, and every disturbance of law and order does not satisfy the public emergency/public safety threshold under Section 5(2).
Analysis of Internet Shutdown Orders from Rajasthan
(i) Impermissible sub-delegation of powers
State action which infringes fundamental rights must conform to the proportionality standard endorsed by the Supreme Court in KS Puttaswamy v Union of India (2017 & 2019). The first prong of the proportionality standard requires that the restriction on fundamental rights must be prescribed by law. The most glaring error in the internet shutdown orders from Rajasthan is the sheer disregard for statutory rules that require telecom suspension orders to be issued by the Secretary, Home Department in the case of the State Government, or in unavoidable circumstances, by an officer not below the rank of Joint Secretary.
None of the internet shutdown orders supplied to us have been issued by the competent authority under the Temporary Telecom Suspension Rules 2017. All orders have been issued by Divisional Commissioners. On 2 Sep 2017, the Rajasthan Government had delegated the powers conferred upon the State Home Secretary under the Temporary Telecom Suspension Rules 2017 to Divisional Commissioners. On 28 September 2018, the Department of Telecommunications of the Central Government had warned the Rajasthan Government against delegating these powers to Divisional Commissioners and stated that the Rajasthan Government should reconsider its decision to delegate these powers to Divisional Commissioners and ensure that the Rules are followed strictly. Despite this, there are several orders issued by Divisional Commissioners in 2019 suspending telecom services including in the wake of the recent Ayodhya judgement.
(ii) Shutting down criticism of the government by shutting down the internet
In a constitutional democracy, arbitrary and disproportionate restrictions cannot be placed on the fundamental right to peaceful protest. The internet has transformed the way people organise and agitate against unjust government action. The Arab Spring is a real life example of how the internet and social media have revolutionised the tactics and methodology of collective protest. In Rajasthan, there have been several instances of Divisional Commissioners imposing internet shutdowns based on mere apprehension of protest or agitation against the government.
For example, on 2 July 2019, the Jaipur Divisional Commissioner issued an order to suspend mobile internet services and social media platforms citing law and order concerns because protestors were demanding the arrest of an alleged sex offendor and compensation for the minor victim. Similarly, in Sikar District when a bandh was called to criticize the conduct of the police in an abduction case, internet services were suspended for 38 hours vaguely citing apprehensions about circulation of rumours.
Suspension of internet services in these cases was a clear attempt to prevent any agitation or protest against the conduct of the police. In light of the proportionality standard, state action must pursue a legitimate aim. Shutting down the internet to prevent criticism of government officials does not constitute a legitimate aim and such misuse of telecom suspension powers goes against the very idea of a State which respects the citizen’s right to peaceful protest.
Further, empirical studies have shown that telecom shutdowns may actually be counterproductive. In a study titled ‘Of Blackouts and Bandhs: The Strategy and Structure of Disconnected Protest in India’, researchers at Stanford University conducted a statistical analysis of network shutdowns in India in 2016 and found that network shutdowns incentivize those forms of violent collective action which tend to be more chaotic and require less communication, coordination and preparation than peaceful demonstrations.
(iii) Telecom shutdowns should be the absolute last resort
In accordance with the proportionality standard, internet shutdowns are permissible only if the intended objective cannot be achieved through less restrictive alternatives. In July and August 2018, Divisional Commissioners in Rajasthan had suspended mobile internet to prevent the use of unfair means in public service examinations for the recruitment of police constables. Prevention of unfair means in examinations does not amount to a “public emergency” that would impact the community at large by any stretch of the imagination. Similarly, in Sikar district, the Divisional Commissioner suspended access to mobile internet and social media platforms to foil the plans of a few criminals who were hiding and were in contact through WhatsApp. Issuing telecom suspension orders in these circumstances demonstrates complete lack of application of mind since the objectives could have been achieved through less restrictive measurea like the use of signal jammers in the exam halls or targetted blocking of phone numbers of criminals.
Internet facilitates speech and much more
The government, while exercising its power under the Temporary Telecom Suspension Rules 2017, should balance the impact of internet shutdowns on fundamental rights of citizens with the need to prevent a public emergency or protect public safety. In PUCL v Union of India (2013), the Supreme Court has held that fundamental rights guaranteed under the Constitution also include ancillary guarantees which make exercise of those rights meaningful and possible. Widespread and indiscriminate suspension of telecom services can have devastating human, social and economic consequences. In Digital India, access to the internet is an indispensable requirement for access to various other rights such as healthcare, education, livelihood etc. This fantastic report by Asmita Bakshi from the Mint spells out the human cost of internet shutdowns in Rajasthan which deprive Uber drivers of their daily earnings, prevent diagnostic centres from functioning effectively and deny students the opportunity to register for exams. As the use of the internet becomes increasingly impossible to extricate from our day to day activities, there is an urgent need to reconsider and reform a legal regime that allows arbitrary and disproportionate use of technological kill switches.
(This post has been authored by Yaqoob Alam, a legal intern at IFF, and edited by IFF staffer, Devdutta.)
- Internet shutdown orders received from Rajasthan Government (link)
- DoT Letter to Rajasthan Government (link)