The internet cannot be suspended in entire districts to prevent cheating in exams - IFF writes to the Rajasthan Government.

tl;dr

We wrote to the officers of the Rajasthan Government expressing concerns about the unlawful, unnecessary, disproportionate and improperly ordered internet shutdowns in various districts of Rajasthan on September 26, 2021, purportedly ordered to prevent cheating in the Rajasthan Eligibility Exam for Teachers 2021. We highlighted that the orders for internet shutdown did not comply with the procedure prescribed under the Telecom Suspension Rules and the guidelines issued by the Supreme Court in Anuradha Bhasin v. Union of India. In our representation, we urged the Rajasthan Government to ensure that internet shutdowns were ordered by properly authorised officials,  that such orders were prominently published, and followed the Supreme Court guidelines. We have also previously written about internet shutdowns in Rajasthan and also made a representation to the Government of Rajasthan on February 6, 2021.

Background

Internet shutdowns were imposed in the districts of Ajmer, Jhunjhunu, Kota, Bundi, Baran, Jhalawar and Udaipur (other than Lasadiya and Kotda) from 6:00 a.m to 6:00 p.m. on September 26, 2021 in light of the Rajasthan Eligibility Exam for Teachers (REET 2021) being conducted on the said date.

The order for Jhunjhunu district, which was signed by its Divisional Commissioner, stated that in exercise of powers under Rule 2(1) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension Rules), ​​“2G/3G/4G Data (Mobile Internet), Internet Services, Bulk SMS/MMS, Whatsapp, Facebook, Twitter and other Social Media Services through Internet Service Providers (Except Voice Call and Broadband Internet)” were suspended. The orders for the districts of Kota, Boondi, Baran, Jhalawar and Udaipur (other than Lasadiya and Kotda) were also signed by their respective Divisional Commissioners, and as per the order, all internet services (except broadband and fixed line) were suspended. Similarly, the District Magistrate of Ajmer ordered suspension of “2G/3G/4G Data (Mobile Internet), Internet Services, Bulk SMS/MMS, Whatsapp, Facebook, Twitter and other Social Media Services through Internet Service Providers (except voice call of Landline, Mobile Phone and Landline Broadband, lease line data).

The orders for internet shutdown (Orders) were passed in the wake of a purported apprehension of cheating by the use of internet/social media by candidates which may disrupt the sanctity of the examination. Another stated apprehension was that of spread of fake news regarding paper-leaks and/or accidents as a result of candidates travelling across districts to write the examination. The officers stated that this may disrupt law enforcement, public order and public safety.

On a bare reading of the Orders, it becomes clear that they are based on mere apprehensions. The orders do not provide any information on how these apprehensions may come true. They do not have a basis in fact and there is an absence of a reasonable link between the apprehended cheating/conveyance of candidates leading to disruption of public order, and the prevention of such disruption by the internet shutdowns that have been ordered.

More specifically, the Impugned Orders do not comply with the following requirements:

(i) They are unlawful: the Orders have been issued by Divisional Commissioners or the District Magistrate of the relevant divisions/districts under Rule 2(1) of the Telecom Suspension Rules. As per the said rules, the power to impose internet shutdowns can only be delegated to an officer not below the level of a Joint Secretary for emergency situations. Therefore, the Orders are unlawful and improperly delegated to Divisional Commissioners. Moreover, preventing cheating in the REET 2021 is not, and cannot be considered as, an emergency situation.

(ii) They are unnecessary: according to Section 5(2) of the Telegraph Act, 1885, internet suspensions must be issued only in the event of a public emergency or when there is a threat to public safety. The possibility of cheating in exams does not meet the legal threshold of an emergency, or that of a threat to public safety.

In fact, in Dhirendra Singh  Rajpurohit v. State of Rajasthan (DB Civil Writ No. 10304 of 2018), the Rajasthan Government provided an undertaking before the High Court of Rajasthan that it would not impose internet shutdowns for the purpose of preventing cheating in examinations in the future. Despite this undertaking, these orders have been issued with the stated purpose of preventing cheating in REET 2021.

(iii) They are disproportionate: while preventing cheating in exams is a legitimate goal, suspending internet services is a disproportionate response to achieve it. Such suspension not only affects the candidates but also brings to halt the day-to-day lives of ordinary citizens. These citizens rely on the internet to earn a livelihood, access healthcare, seek help in times of crises and to stay abreast with developments in their surroundings. Less restrictive measures such as ensuring proper invigilation at test centres can prevent cheating without stifling citizen’s fundamental right to access information on the internet.

(iv) They are not in compliance with the Supreme Court’s guidelines: the Supreme Court in Anuradha Bhasin v Union of India exhorted governments to prominently publish copies of internet suspension orders to ensure that aggrieved parties are able to seek judicial review, if required. The Orders have not been prominently published on the website of the Government of Rajasthan, and it is only with much difficulty that one is able to access them.

Our Recommendations

We emphasised that apart from legal concerns, the economic, psychological, social, and journalistic harm caused by such suspensions outweighs any speculative benefits as, amongst other things, residents of the affected areas are unable to communicate, carry on with their businesses, trades or professions, continue their education or verify news that they receive. Sectors such as tourism, IT, e-commerce, freelancers, and press and news media suffer the hardest hit. Suspending mobile-internet, while allowing  fixed-line internet to function, disproportionately affects those underprivileged by the digital divide.

Access to information via the internet is a fundamental right under the Indian Constitution, and any restriction on internet access must be temporary, limited in scope, lawful, necessary and proportionate. Suspension of the internet, which causes huge economic loss and disruption in day-to-day livelihood of small businesses, to prevent cheating is not only highly disproportionate but also ineffective in curbing the menace of cheating. IFF stands against such internet shutdowns and we have urged the officers of the Rajasthan Government to:

(i) revoke the Orders since they are not in accordance with the law laid down by the Supreme Court in Anuradha Bhasin;

(ii)  issue an advisory clarifying that the powers available under Rule 2(1) of the Telecom Suspension Rules cannot be delegated by the Home Secretary to government officials below the rank of Joint Secretary and any orders issued by the delegate must be confirmed by the Secretary within 24 hours;

(iii) prominently published suspension orders on official government websites;

(iv) exercise restraint when ordering suspension of internet services, particularly for the stated purpose of facilitating examinations; and

(v) follow all guidelines issued by the Supreme Court of India in Anuradha Bhasin in future.

Important Documents

  1. IFF’s representation to the officers of Rajasthan Government dated 26.09.2021. (Link)
  2. Internet Suspension Order by the Divisional Commissioner for Jhunjhunu district dated 25.09.2021. (Link)
  3. Internet Suspension Order by the Divisional Commissioner for Udaipur district dated 25.09.2021. (Link)
  4. Internet Suspension Order by the District  Magistrate for Ajmer district dated 24.09.2021.(Link) Clarification to the Internet Suspension Order by the Additional Divisional Commissioner for Kota district dated 24.09.2021. (Link)