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 to not 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. The State of Rajasthan has responded to our latest application where they have stated that their review committee does not meet and record findings on the legality of internet suspension orders - it only confirms them, and that too by circulation. This is despite Rule 2(6) of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Telecom Suspension Rules’) which mandates the review committee to meet within five days of an internet suspension order and record their findings on its legality. We have appealed this response.
Why should you care?
The response of the Rajasthan Government advances transparency, and we are grateful for their timely and honest response. But, the response does raise some concerns. The Review Committee is an oversight mechanism established under the Telecom Suspension Rules. If the Review Committee does not diligently oversee and review orders for internet suspension issued by the Competent Authority, it will result in the misuse of powers, which are already overbroad and nominally restricted.
A Review Committee that doesn’t review
On 12th February 2022, we filed an RTI application asking the State of Rajasthan several questions about internet shutdowns, including the following :
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?
In response to question 7, the SPIO replied that the Review Committee constituted under Rule 2(5) of the Telecom Suspension Rules consists of the Chief Secretary of Rajasthan, the Secretary, Personnel Affairs and the Principal Secretary, Legal Affairs. However, in response to question 8, the SPIO stated the Review Committee does not record findings while evaluating the legality of internet shutdown orders. Instead, the Review Committee merely confirms internet shutdown orders. In fact, the Review Committee does not even convene meetings to record its findings, and instead receives internet shutdown orders by circulation!
This is illegal under Rule 2(6) of Telecom Suspension Rules, which mandates the Review Committee to meet within five days of an internet shutdown order and record its findings on whether the internet shutdown order was issued in accordance with Section 5(2) of the Telegraph Act, 1885. Merely confirming the orders, without recording findings or even convening meetings shows a serious non-application of mind, and entirely vitiates the oversight mechanism instituted under the Telecom Suspension Rules.
Moreover, the suspension of internet services seriously impacts several fundamental rights of millions of affected Indians. Internet suspension must be seen as an extreme and exceptional step, only to be taken in cases of public emergency. This is why the Telecom Suspension Rules require a high-level committee of executive members to meet within five days, every time there is an internet suspension. Such meetings cannot be dispensed with simply by receiving suspension orders by circulation. This practice undermines the fundamental rights of Indians.
The Review Committee is tasked with an important administrative function
Internet shutdowns are extremely prevalent in India. According to Top10VPN, in 2021 the internet was shut down in India for 1157 hours and it cost the economy $582.2 million (INR 447 Crores. In 2020, the internet was suspended for 8,927 hours, more than anywhere else in the world, costing the Indian economy $2.8 billion (INR 21378 Crores). These shutdowns prevent Indians from accessing education, healthcare, news and the financial ecosystem.
However, internet shutdowns themselves are not per se illegal. Telecom Suspension Rules permit the Secretary to the central or state Home Department, to suspend internet services. While these rules mandate the executive to provide reasons for suspending internet services, the orders are not subject to any judicial/independent review.
The only safeguard to prevent misuse of this power rests with the Review Committee under Rule 2(6) of Telecom Suspension Rules which requires a review committee consisting of high-level government officials to ‘record its findings’ on whether internet suspension orders are in accordance with Section 5(2) of the Indian Telegraph Act, 1885 (‘Telegraph Act’). Section 5(2) requires that internet suspension orders must 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 or public order or for preventing incitement to the commission of an offense.
Thus, the Review Committee's findings are important. They provide valuable comments on the decision of the Home Secretary. The State of Rajasthan in response to a RTI Application has stated that their Review Committee does not record findings, or even convene any meetings. This is deeply concerning because the internet is suspended in Rajasthan more than in any other state, and many of these suspensions take place even when there is no public emergency or threat to public safety.
We have filed a first appeal asking the State of Rajasthan to seek clarity on their response and to provide copies of findings in case their review committee does record findings. We will update you once we receive the responses.
- State of Rajasthan’s RTI Reply dated 23rd February 2022 (link)
- RTI Application filed by Internet Freedom Foundation (link)