Even as the Indian government considers rolling out a new law to replace the more-than-two-decade-old Information Technology Act, which its own ministers have called “outdated,” there also appears to be colonial baggage that the government is reluctant to let go of – especially when it comes to laws governing internet shutdowns in the country.
The Department of Telecommunications (DoT), which works under the aegis of the Ministry of Communications, has released the draft Indian Telecommunication Bill, 2022, for consultation, covering aspects related to a licensing regime for telecom service providers, setting up of telecom infrastructure, assignment and management of spectrum, protecting users from spam messages, and more.
However, the proposed legislative overhaul has been criticised for increasing regulatory burden, enabling surveillance, ignoring past recommendations, and in a few parts, not being disruptive enough. Case in point, the provision of the Bill that allows for internet shutdowns to be imposed in the country mirrors the language used in the colonial-era Indian Telegraph Act, 1885.
Considering the limiting directions issued by the Supreme Court in Anuradha Bhasin vs Union of India, The Quint spoke with lawyers to understand: What provisions of the draft Bill are outdated and why? What are the implications of not having a standard of proportionality for internet shutdown orders?
What Are the Grounds for Internet Shutdown?
In the event of a public emergency or in the interest of public safety, Clause 24(2) of the draft Bill lets the central or state governments suspend communication via any telecommunication network, as long as it is necessary or expedient to do so, by issuing an order in the interest of:
Integrity or national security
Friendly relations with foreign states
Preventing incitement to an offence
This means that for the first time, the State would be directly empowered to suspend mobile and fixed-line internet services whereas the existing legislation only provides for “temporary possession” of the telegraph.
Colonial Relic or Legal Reform?
If you look at Clause 24(2) and Clause 5(1) of the Telegraph Act, the wording is more or less the same.
“There are minor changes here and there which do have ramifications but there is nothing which furthers the right of individuals, nothing which protects individuals from internet shutdowns,” said Krishnesh Bapat, associate litigation counsel of digital rights advocacy group Internet Freedom Foundation (IFF).
Now, the problem is that central reforms regarding internet shutdowns have been directed or recommended by the Supreme Court and the Parliamentary Standing Committee on Information Technology, both of which have been ignored in Clause 24.
“The Anuradha Bhasin (Supreme Court judgment), among other things, says to publish copies of internet shutdown orders. Similarly, the Parliamentary Standing Committee has said that the central government should maintain data on how many shutdowns have happened. They’ve also separately recommended the government to carry out studies on whether internet shutdowns are even effective in achieving law and order ends. None of these things find a place in the draft bill.”Krishnesh Bapat, Internet Freedom Foundation
It is important to note that Clause 52 of the new Bill indicates that the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, notified under the Telegraph Act, would continue to exist. Hence, internet shutdown orders would still need to be scrutinised by a review committee after the new Bill is passed.
Currently, the three-member review committee must be chaired by either the Cabinet secretary at the central level or the state secretary at the state level. But questions have been raised about the efficacy of the review mechanism that's already in place.
“If you look at it, the executive passes an order and the executive itself reviews the order. How is that even a proper review? Ideally, there should be a judicial review,” Prasanth Sugathan, the legal director of Software Freedom Law Center (SFLC), told The Quint.
To this point, the Shashi Tharoor-led IT committee had also recommended altering the composition of the review committee to include retired judges and policymakers as well as stakeholders such as telecom service providers and members of civil society.
“These review mechanisms became a part of the statutory mechanism after the Supreme Court’s PUCL judgment, the older legislation did not have any such rules because it is an age-old legislation,” Sugathan said.
“But when you have a new legislation, you expect such things to be there. The details regarding how the review mechanism is supposed to work can be there in the rules,” he added.
Proportionality and Clause 24
Another major point of what the Supreme Court said in its Anuradha Bhasin judgment has been conspicuously left out in the draft Bill. The top court had ruled that internet shutdown orders must satisfy the tests of both necessity and proportionality. Yet, the draft Bill doesn't propose a standard of proportionality (stating that orders can be issued if it is necessary or expedient to do so).
However, it seems like the jury’s still out on the likely wider repercussions of this missing term.
In KS Puttaswamy vs Union of India, the Supreme Court ruled that a violation of privacy is justified as long as it passes the tests of legality, necessity, and proportionality. The test of necessity laid down by the Supreme Court, in this case, is “defined in terms of a legitimate State aim.” Since the Anuradha Bhasin judgment draws from this ruling, in the context of internet shutdowns, the first restriction implies that a shutdown measure can be exercised by the State if it is ‘necessary’ to achieve a legitimate aim.
Then, what is the principle of proportionality? As per the Anuradha Bhasin judgment, for an internet shutdown to be proportionate in response, the authorities are required to:
Determine the possible goal of imposing a shutdown
See if an alternative mechanism exists to further the goal
Then, the authorities are required to resort to the least-restrictive measure
When asked about the implications of leaving out ‘proportionality’ from Clause 24, IFF’s Krishnesh Bapat opined that shutdown orders will still have to comply with the principle.
“But it would have been much better if they had specifically included proportionality as a requirement, as a precondition to suspend internet services. They haven’t done that and so when an officer is actually applying this provision on the ground and directing internet service providers to suspend internet services, they’re only looking at the provision…they’re not thinking about whether it’s the proportional thing to do or not. You can’t possibly expect them to also go through Anuradha Bhasin (judgment),” he said.
They’re not considering that because the central government has not included it in its statute, Bapat added.
Elaborating on the real-life consequences of the Bill's provision, Sugathan said:
“Just because the government wants to curtail protests by people, shutdowns can be imposed, not because there is a chance of violence happening or because there is already violence happening, is that something that’s really proportionate? That’s the question that the Anuradha Bhasin judgment asks. Hence, any action to shut down the internet should be infused with the proportionality principle.”
When asked if this provision could be called a carte blanche for the State to shut down the internet, Bapat was a firm no and said, “You can still challenge the decisions by the government before the courts and the courts will test it on the grounds of proportionality.”
However, Sugathan offered a slightly different view and said, “It’s much more than that (a carte blanche). The problem is that it has the same surveillance provisions and an expanded clause for enabling internet shutdowns. I would say that it has become more problematic with respect to both surveillance and internet shutdowns.”