Prior to the notification of the Temporary Suspension of Telecom Services, Internet shutdowns were ordered under two statutes, ie, Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885.
The situation changed after the promulgation of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter, the Telecom Suspension Rules) by the Ministry of Communications, on 7 August 2017. These rules conferred powers upon competent government authorities to order blanket network outages in districts and states of India. These rules are the only directions to suspend telecom services in India.
According to these rules, directions to suspend telecom services shall not be issued except by an order made by a ‘competent authority’.
Rules Pertaining to Suspension of Telecom Services
Thus, according to Rule 2(1) the directions to suspend the telecom services shall be made only under these rules, and according to the procedure mentioned therein. This also implies that directions for suspension of telecom services, consequently network shutdowns, may not be ordered under any other provision of law, including Section 144 of CrPC 1973.
Though these rules lay down an elaborate procedure to suspend telecom services, there are still several areas of concern.
Firstly, these rules were drafted by the Executive without any public consultation. When Rajya Sabha MP Husain Dalwai questioned the government in the Parliament about the consultation process that was undertaken in finalizing these rules, the government responded saying that there was a consultation with the Ministries of Home Affairs, Finance, Communications, Electronics and Information Technology and NITI Aayog.
This implies that there was no public consultation. Not only was there a lack of public consultation, there was no consultation with the state governments as well.
Despite the fact that Internet shutdown orders are imposed to maintain law and order in states, and the fact that ‘Public Order’ and ‘Police’ are mentioned as items under the State List as per Schedule VIII of the Constitution of India, none of the states were consulted in the formulation of these rules.
Secondly, the rules allow suspension of telecom services during a public emergency or in the interest of public safety.
While the terms “public emergency” and “public safety”, at least one of which must be present to issue an Internet shutdown order, are not defined under the Telegraph Act or any other law, they were interpreted by the Supreme Court of India in the matter of the People's Union for Civil Liberties vs Union of India (AIR 1997 SC 568) to mean “the prevalence of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and “the state or condition of freedom from danger or risk for the people at large”, respectively.
Even with the Supreme Court’s guidance, these terms remain open to broad interpretation by the government, and there is no objective standard to determine if a given situation qualifies as a public emergency or threatens public safety.
Thirdly, the rules provide that the oversight of telecom suspension is to be carried out by a single Review Committee, which comprises entirely of the members of the Executive. This severely compromises independence and impartiality, due to apparent conflict of interest when the authorization, conduct and review is carried out by a single arm of the government machinery. The public oversight principle is therefore not complied with.
Implementation of these Rules
Fourthly, there is a concern with respect to implementation of these rules. We discovered this when we filed an application under Right to Information Act 2005 to the Rajasthan Home Department in April 2018, asking the following question among others: “what is the exact number of Internet Shutdowns that were ordered in Rajasthan during 07.08.2017 to 01.05.2018?”.
We received a response from the Home Department stating that our applications had been forwarded to various district-level departments, and that we would be receiving the requested information from those departments. We also received responses from various district Police Commissioners and District Magistrates, instead of Secretary of the Rajasthan Home Department.
This implies that the Internet shutdown orders are being issued by the District Magistrates and District Police Commissioners in spite of the Rules being in force.
Fifthly, the Central and State Review Committees established by the Rules are meant to prevent overboard interpretations of the Act, the efficacy of this review process is entirely questionable as the Committees are required to convene only within five working days of the issue of Internet shutdown orders, by which time most shutdowns would already have been imposed and lifted.
On Transparency
Even if the Committee were to determine in such a situation that an Internet shutdown was wrongfully imposed, the damage would already have been done, rendering the finding, moot.
Last, the new rules also fail to accommodate the principle of transparency. There is no provision under the rules which provide for notification of shutdowns in press or official gazettes. Considering that TSPs offering Internet services in the country do not consistently issue notifications before shutdowns are imposed, users in affected areas are often caught unawares, and have little to no time to make arrangements to mitigate the impact of shutdowns.
This concludes that though these rules are better than the archaic provision of Section 144 of Criminal Procedure Code, 1973, a provision of law which was clearly not designed to oversee state actions like Internet shutdowns. But at the same time, these rules continue to sustain various flaws that need to be addressed.
Rajya Sabha MP Husain Dalwai, introduced a statutory motion asking for annulment of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter, the Telecom Suspension Rules) on 31 July 2018 in the Rajya Sabha. Though the motion has been admitted in the Rajya Sabha, it has not been listed in the list of business of the Rajya Sabha yet.
There are only two days before the end of this Monsoon Session, and these days are the last two days for a discussion on this motion.
At the end of every session of the Rajya Sabha, the Secretariat publishes a list of Statutory Rules and Orders made under the delegated powers of legislation, laid on the table of the Rajya Sabha during that session, and the period during which modification can be made in those rules and orders.
The Way Forward
Similarly, after introduction of Telecom Suspension Rules 2017, the Secretariat on Tuesday, 26 December 2017, after the end of the Winter Session, issued a bulletin stating that The Telecom Suspension Rules made under the delegated powers of legislation and published in the Gazette were laid on the Table of the Rajya Sabha during the week ending, ie 15 December 2017. The orders will be laid on the table for a period of 30 days, which may be comprised in one session or in two or more successive sessions.
Members can move a motion for modification/annulment before the expiry of the session, immediately following the session in which the laying period of 30 days is completed.*
The rules were laid in the Winter Session that convened on 15 December 2017 and ended on 5 January 2018, which means 22 days and 14 sittings in the Rajya Sabha. As per the bulletin, the period of 30 days for tabling a statutory order continued in the Budget Session. Therefore, the end of this session would mark an end to the opportunity for the Parliament to modify / annul these rules.
Thus, noting the emergency of the situation, it is important for the Business Advisory Committee of Rajya Sabha (a Committee that recommends the time that should be allocated for the discussion of the stage or stages of such government Bills and other business as the Chairman in consultation with the Leader of the House may direct for being referred to the Committee). If no time is allotted to the motion in concern, this motion will lapse, and these rules can no longer be challenged in Parliament.
*[Section 7, Indian Telegraph Act 1885, Power to make rules for the conduct of telegraphs: Subsection 11 Clause (5) states, “[Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days [which may be comprised in one session or in two or more successive sessions, and it, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
(This article was first published in Software Freedom Law Center India, and has been republished with permission. You can read the original article here. They tweet at @SFLCin. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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