On Thursday, 19 December, internet and mobile services were suspended in some parts of the national capital amid protests against the Citizenship Amendment Act (CAA).
Telecom operators like Airtel, Vodafone Idea, Jio and even the Mahanagar Telephone Nigam Limited (MTNL) were ordered to shut down services in select parts of the capital.
An order, issued by the Office of the Deputy Commissioner of Police on 18 December, started doing the rounds asking telcos to shut down their services from 9AM to 1PM on 19 December. They duly adhered to the police order from the special cell.
But legal experts have said the order has been passed without any threat of emergency or violence in question, and the order merely states the shutdown in view of ‘law and order situation’. The order was also not issued by the mandated authorities.
Why The Police Order is Illegal
According to the 2017 notification from the Ministry of Communication, this order issued by the Deputy Commissioner of Police (DCP) is illegal as per the rules that need to be followed for the temporary suspension of telecom services.
This is because, as per the law, nobody below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, can issue a temporary shutdown.
Apar Gupta, Supreme Court lawyer and Executive Director of Internet Freedom Foundation believes the order has not been issued under any legal authority.
“There are several illegalities because it’s a letter and not a order. By which I mean, he (the Deputy Commissioner of Police Delhi) is not drawing reference to any state or central enactment or legal provision by itself. It is completely illegal.”Apar Gupta, Supreme Court lawyer and Executive Director of Internet Freedom Foundation
And the rules set this out very clearly, as highlighted in the Section 2.1 of the Network Suspension Rules:
“Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government.”Notification by Ministry of Communication
To get some clarity on the incident earlier on Thursday and seek answers against the order, the Internet Freedom Foundation is ready to take legal action.
Raman Chima, Policy Director, Access Now also pointed out the rules have been structured in such a way that passing orders is done via a review committee, within a certain period of time.
“Under the rules, the shutdown can be ordered by central or state government in circumstances that have to go through a particular process, where emergency shutdown can be issued once it is confirmed by a review committee. Under that process, the Delhi Police Special Branch is not empowered to be able to issue this. If they have done so, it needs to be confirmed by an official, could be either the Delhi Home Secretary, or the Home Ministry within a certain period.Raman Chima, Policy Director, Access Now
Time to Ask the Right Questions
So who’s at fault here, was the shutdown unavoidable?
Srinivas Kodali, an independent researcher, points out the blame lies on telcos' legal team, who, according to him, should ideally follow rules by procedure. “Just because the commissioner is ordering, you don't shut them down. The rule was brought to cater to emergency. In this case, a) there was no emergency, b) even if there is emergency, they have't followed the rules,” he adds.
But Nikhil Pahwa, founder of Medianama and co-founder, Save the Internet, feels this isn’t the first time when a DCP rank offer has issued an order to shutdown mobile service in the country. “Even if an order is passed by a DCP, who is going to question the government and ask them for reasons to shut the service down?” he said.
While many parts of the country has seen suspension of mobile services in recent years, you won’t come across many instances of shutdown in the capital, and Pahwa says “such action shows the government is trying to restrict freedom of speech of the people by restricting use of the internet for such purpose, and the telcos have no option but to abide by the order.”
Chima believes questions need to be asked as to who is reviewing these shutdown orders. “Emergency orders have to be reviewed. Someone should ask the government who is reviewing the orders in Delhi, and were they issued under Network Suspension Rules of 2017.”
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