Amendment to the Telecom Suspension Rules offers little protection against arbitrary and prolonged internet shutdowns #KeepUsOnline

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Tl;dr

The central government recently amended the Telecom Suspension Rules 2017 to insert Rule 2A which specifies that an internet shutdown order can remain in operation for a maximum period of 15 days. This amendment represents a missed opportunity for wider reform because it fails to incorporate directions issued by the Supreme Court in Anuradha Bhasin v. Union of India requiring proactive publication of internet shutdown orders and periodic review by the Review Committee every seven working days. Further, the choice of 15 days as the appropriate length of time for the validity of a suspension order will limit the utility of the recent amendment since most internet shutdowns do not last 15 days. Finally, the amendment was notified without any public consultation and the  government cannot shirk its duty to comprehensively evaluate and reform the legal framework for internet shutdowns by implementing such cosmetic changes.

On 10 November 2020, the Central Government issued a gazette notification inserting Rule 2A into the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The newly inserted Rule 2A states that “the suspension order issued by the competent authority under sub-rule (1) shall not be in operation for more than fifteen days.” Before we analyse the impact of this amendment, we must first understand the legal framework for internet shutdowns in India. Prior to 2017, internet shutdowns were routinely ordered by District Magistrates under Section 144, Code of Criminal Procedure 1973. However, as the Supreme Court has noted in Anuradha Bhasin v. Union of India, the legal position changed after the Telecom Suspension Rules were notified in 2017 and “with the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet.”

Under Rule 2(1) of the Telecom Suspension Rules, an internet shutdown order should be issued by the Home Secretary of the central or state government. Under Rule 2(6) of the Telecom Suspension Rules, the central or state level Review Committee is required to review internet shutdown orders issued by the Home Secretary within five working days and determine whether the orders demonstrate a ‘public emergency’ or threat to ‘public safety’ under Section 5(2) of the Indian Telegraph Act, 1885. These limited procedural safeguards present in the text of the Telecom Suspension Rules were found to be inadequate by the Supreme Court in Anuradha Bhasin v. Union of India, and additional requirements were read into the Rules by the judiciary to perform a gap filling role till the legislature stepped in. In particular, the Supreme Court issued directions requiring (a) proactive publication, (b) time limitation and (c) periodic review of internet shutdown orders.

[Extracts from judgement in Anuradha Bhasin v. Union of India]

The final position which emerges upon reading Rule 2(6) of the Telecom Suspension Rules with the judgement of the Supreme Court in Anuradha Bhasin v. Union of India is that an internet shutdown order must be reviewed by the Review Committee within five working days of its issuance and it should subsequently be reviewed every seven working days from the date of the last review. With insertion of Rule 2A, this would mean that each internet shutdown order should be reviewed only once by the Review Committee during its 15 day life span. For instance, if an internet shutdown order was issued today i.e. 12 November 2020, it could only remain in operation till 26 November 2020 (15 days time limit under Rule 2A). If we assume Saturday and Sunday to be non-working days, the order would have to be reviewed by the Review Committee but only once on 18 November 2020 (first review within five working days under Rule 2(6)) since the second review would be due on 27 November (periodic review after every seven working days of last review as per Anuradha Bhasin v. Union of India) by when the order would have expired.

Amendment represents missed opportunity for wider reform

By limiting the duration of each suspension order to 15 days, the recent amendment provides statutory recognition to the Supreme Court’s direction that internet shutdowns must be temporary only and any indefinite suspension of telecom services is not permissible under the law. However, the amendment fails to incorporate other directions issued by the Supreme Court requiring proactive publication of internet shutdown orders and periodic review by the Review Committee every seven working days from the date of the last review.

(i) Fails to promote compliance with Anuradha Bhasin v. Union of India
As we have uncovered through the RTI Act, compliance by state governments with the judgment of the Supreme Court in Anuradha Bhasin v. Union of India remains low. For instance, several state governments have imposed internet shutdowns in 2020 without publishing the underlying orders and they have even refused to provide this information in response to RTI applications. Therefore, the recent amendment represents a missed opportunity to incorporate proactive publication and periodic review as a mandatory duty within the text of the Telecom Suspension Rules which would have increased awareness about these judicially introduced requirements and boosted compliance by state governments.

(ii) Adopts prolonged internet shutdowns as the baseline
The choice of 15 days as the appropriate length of time for the validity of an internet shutdown order will limit the utility of the recent amendment. While regions like Jammu & Kashmir and Darjeeling, West Bengal have experienced very prolonged restrictions, most internet shutdowns in India do not last for 15 days. Therefore, the amendment appears to have been drafted using extreme cases as the baseline and it will not create any additional obligations for government authorities in the vast majority of cases. Even in regions like Jammu & Kashmir, the amendment may lead to a nominal increase in paperwork for government officials who will have to issue orders more frequently to extend the ongoing internet shutdown but it does not prevent the government from routinely issuing boilerplate orders every 15 days.

(iii) Lack of stakeholder consultation and public participation
While reform of the Telecom Suspension Rules is undoubtedly necessary, such an exercise will not be meaningful unless it is preceded by stakeholder engagement and public consultation. On 06 February 2020, the Minister of State for Communications had stated in Rajya Sabha that the central government will review the Telecom Suspension Rules and conduct stakeholder consultation in view of the Supreme Court’s observations in Anuradha Bhasin v. Union of India. Earlier this year, IFF had also written to the Department of Telecommunications and Ministry of Parliamentary Affairs to follow up on this assurance and urged the government to commence the public consultation process for review of the Telecom Suspension Rules. However, till date, this promise has not been fulfilled and Rule 2A was unilaterally inserted into Telecom Suspension Rules without any stakeholder consultation or public participation.

In conclusion, the recent amendments to the Telecom Suspension Rules may be characterized as a bandaid applied on a bullet wound which does little to prevent the patient from bleeding out. The central government cannot shirk its duty to comprehensively evaluate and reform the legal framework for internet shutdowns by implementing such cosmetic changes. Most importantly, any credible legal reform process should involve public consultation and it must also address wider problems such as economic damage caused by internet shutdowns and the ineffectiveness of internet shutdowns at preventing violence.

  1. Gazette notification dated 10.11.2020 issued by DoT amending Telecom Suspension Rules (link)
  2. Judgement of the Supreme Court in Anuradha Bhasin v. Union of India dated 10.01.2020 (link)
  3. Previous post titled ‘RTI responses from Andhra Pradesh and Gujarat show compliance failure with the Anuradha Bhasin Internet Shutdown decision’ dated 10.11.2020 (link)
  4. Previous post titled ‘Can’t Drop the Ball on Internet Shutdown Reform’ dated 04.04.2020 (link)