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All Posts | Jan 10,2020

Statement about SC judgment on Internet Shutdown in Kashmir

Statement about SC judgment on Internet Shutdown in Kashmir

SFLC.in welcomes the judgment pronounced today by the Supreme Court in Anuradha Bhasin v Union Of India(W.P(C) no. 1031 of 2019) wherein the Court has directed that shutdown orders must adhere to the principle of proportionality and must be temporary in nature. SFLC.in maintains the only internet shutdown tracker in India and has been trying to raise awareness among citizens in general and policymakers in particular about the need to prevent Internet shutdowns. In the present age, Internet is a medium that is necessary for citizens to meaningfully exercise their fundamental right to freedom of speech and expression, right to education and right to life. SFLC.in has always argued for considering right to internet access as a fundamental right and the High Court of Kerala had upheld this contention in Faheema Shirin v State of Kerala(WP(C) 19716/2019) while holding that right to access internet is a part of right to education and right to privacy. The Supreme Court has recognised that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected. This declaration would make it easier to challenge shutdown orders in future. The Court also emphasised on the need for transparency and has mandated that shutdown orders need to be published. The biggest obstacle in challenging shutdown orders in the past was the lack of transparency. Most of the applications under the RTI Act filed by SFLC.in for obtaining shutdown orders were rejected citing national security as a reason. Publishing shutdown orders could enable citizens to approach High Courts to challenge these orders. The direction to have reviews of suspension orders every 7 days could place a check on long shutdowns. However, the fact that the review committee is also composed of members exclusively from the executive could make this a futile exercise. Although the judgment has not given any immediate relief to the people in Kashmir affected by the shutdown, we hope that the Internet blockade in Kashmir will be lifted at the earliest based on the law laid down in the judgment.

All Posts | Dec 06,2018

Second Appeal to the RTI Application revealed procedural lapses: only 11 review committee meetings despite 40 Internet Shutdowns in Rajasthan

We at SFLC.in define Internet Shutdowns as "a Government-imposed disablement of access to the Internet as a whole within a particular locality or localities for any duration of time". To track instances of Internet Shutdowns in India, we built an interactive tracker that can be located at: www.internetshutdowns.in. This year, according to our tracker, India has witnessed 130 instances of Internet shutdowns – the highest in the world.

Our tracker records shutdowns on the basis of data collected from media reports (online and offline). Over the course of our shutdowns project, we have expanded to include a citizen reportage mechanism i.e. a method for citizens, in or around affected areas, to bring instances of shutdowns to attention, and share stories on how shutdowns affect them and their communities. Nevertheless, all data recorded by our tracker continues to be secondary, which means that its accuracy is highly dependent on media reportage.

In the absence of any reliable means to gain access to Internet shutdown orders, to get a sense of the true extent of unreported shutdowns (if any), we filed an application under the Right to Information Act 2005 to the Rajasthan Home Department in April 2018 asking various questions, a few of them were as following:What is the exact number of Internet Shutdowns that were ordered in Rajasthan during 07.08.2017 to 01.05.2018?” and “How many meetings of the Review Committee [as per the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017] have taken place in the said time period and requested copies of the minutes of these meetings, including file notes.”

In response to our RTI application, the Home Department responded by stating that our applications had been forwarded to various district-level departments as the requisite information was available with them. When we received further replies from districts of Rajasthan, it was revealed that there have been 40 instances of Internet shutdowns between 07.08.2017 and 01.05.2018 across different districts. Considering that our tracker had recorded only 14 instances of Internet shutdowns across all of Rajasthan during the same time period, we gathered that there were at least 26 unreported instances of Internet shutdowns in Rajasthan alone during the eight-odd months in question. A detailed note on these replies ,as received from the Home Department, Government of Rajasthan can be found at: https://sflc.in/rti-reply-rajasthan-home-department-reveals-21-unreported-internet-shutdowns

However, the Home Department refused to furnish any information vis-a-vis the number of review committee meetings and copies of minutes of these meetings. They submitted that the information requested was classified information related to the security of the nation and hence was exempted from being shared under Section 8(1)(a) of the RTI Act, 2005. We filed first appeal to Home (Appeal), Department, State of Rajasthan on the basis of two main grounds : 1. That the requested information does not fall within the ambit of Section 8(1)(a) of the RTI Act, 2005. While the minutes of the meeting may be classified, the number of meetings conducted to review the suspension orders are not per se classified. Moreover, citizens have a right to know the safeguards and measures implemented towards protecting their freedom of speech and therefore, access to information sought is in the larger interest of the public; and 2. That Section 10 of the RTI Act, 2005 should have been applied and officer should have provided at least that part of the information which can reasonably be severed from any part that is believed to contain prejudicial information.

The First Appellate Authority failed to give a satisfactory reply to for refusal to grant the information sought. In fact, it vaguely rejected the appeal by giving unsubstantiated reasons. Not only did the FAA fail to specify the substantial reason against which such a rejection may be preferred, it also failed to explain and provide reasons as to how the disclosure of sought information affects the security of State. The State Public Information Officer (SPIO) claimed exemption under Sec. 8(1)(a) of the RTI Act, 2005 without offering any explanation whatsoever, and the Appellate Authority merely upheld the decision of the SPIO. Unsatisfied by this decision, we filed a second appeal. The second appeal was admitted and heard.

The State Information Commission of Rajasthan dismissed the appeal stating that the State Home Department shall furnish all the information that does not affect the security of the state. As a result, we received a response from Home Department stating that there have been 11 review committee meetings in the said time period: 07.08.2017 to 01.05.2018. Out of 11, the department shared copies of minutes of only six meetings, they claimed national security exemption to prevent sharing the remaining information.

It can be gathered from our existing data and the RTI responses that there have been 40 instances of Internet shutdowns across all of Rajasthan during the time period: 07.08.2017 to 01.05.2018. Of these, at least 29 instances of Internet shutdowns in Rajasthan did not have a review committee meeting during the eight months in question.

The response from State Home Department, Rajasthan to SFLC.in's Second Appeal is provided below:

All Posts | Nov 29,2018

Home Department, State of Rajasthan: No more Internet Shutdowns for prevention of cheating in examinations.

There has been a staggering increase in the number of Internet Shutdowns in India. In comparison to 2012 when India saw only three shutdowns over a year, in 2018, India has already observed 127 as of 28th November 2018 instances of Internet Shutdowns. While Internet shutdowns have become almost a standard state response during law and order situations in India, it is still highly unusual to see a shutdown being imposed to prevent cheating during examinations. That being said, we at SFLC.in have been maintaining an Internet Shutdowns tracker since 2012 and recording instances of Internet Shutdowns across India. As a result, we have observed that State of Rajasthan has ordered an Internet shutdown to prevent cheating during examinations on more than two occasions in 2018.

Thus, a Public Interest Litigation challenging orders that were promulgated to impose Internet Shutdowns in Rajasthan to prevent cheating in examinations was filed at the Jodhpur High Court, located in the State of Rajasthan. On 25th July 2018, the matter (CW 10304/2018) was listed and first heard by a division bench of Justice Nirmaljeet Kaur and Justice Dinesh Mehta.

The case was filed primarily to contest the validity of the State of Rajasthan’s action to issue orders to suspend Mobile Internet Services for conducting the Constable recruitment examination 2018. The petitioners, Advocates Nitin Goklani and Pravin Vyas, submitted that this action of the state was beyond the scope of Temporary Suspension of Telecom Services Rules, 2017. Petitioners argued that the orders to impose the Internet Shutdowns in order to prevent cheating in examination violated Article 19, fundamental right to freedom of speech and expression as enshrined under Constitution of India. The Jodhpur High Court took cognizance of the said submission and issued notices to the State of Rajasthan, through its secretary of Home Department, Rajasthan and Divisional Comissioner, Jodhpur.

Home Department of Rajasthan submitted an additional affidavit stating that the suspension of Internet Services for conducting examinations does not fall in the ambit of ‘public safety’ or ‘public emergency’ as provided under the Temporary Suspension of Telecom Services Rules, 2017. In the light of the said affidavit filed by the State of Rajasthan, a division bench comprising of Justice Sangeeta Lodha and Justice Dinesh Mehta disposed off the matter, on Wednesday, 28th November 2018.

 

 

All Posts | Nov 28,2018

SFLC.in at IGF 2018, Paris: Overview of our Lightning Talk on Internet Shutdowns

The 13th Internet Governance Forum (“IGF”) was hosted by the Government of France at the headquarters of UNESCO in Paris from 12 to 14 November 2018. The overarching theme for the event was ‘Internet of Trust’.

The IGF is a global multi-stakeholder platform to exchange information and share good policies and practices relating to the Internet and related technologies. The IGF also gives stakeholders from all countries, including developing countries, the opportunity to engage in the debate on Internet governance and it contributes to capacity building, allowing these stakeholders to build knowledge and skills that will facilitate their participation in existing Internet governance institutions and arrangements.

This year, at IGF, SFLC.in was part of a panel organized by Mozilla on - ‘Has it become a luxury to disconnect?’ and also gave a lightning talk on ‘Internet Shutdowns in India’. SFLC.in was represented by Shashank Mohan on both sessions at the IGF.

We wish to bring you summaries of these sessions at the IGF, as two posts.

(For a summary of our panel discussion organized Mozilla on ‘Has it become a luxury to disconnect?’ at the IGF in Paris, please click here)

Summary of our lightning talk on Internet Shutdowns in India

Speaker: Shashank Mohan

Key highlights

  • We (SFLC.in) define Internet Shutdowns to be - government imposed suspension of access to the Internet, as a whole, within one or more localities for any duration of time.

  • Certain regions in India have been disproportionately affected by Internet Shutdowns, such as – Jammu and Kashmir, Rajasthan and West Bengal.

  • The current rules on Internet Shutdowns in India – Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, do not provide a formal mechanism of reporting shutdowns by the executive.

  • Internet Shutdowns have significant socio-economic costs for the country.

  • It is unclear whether Internet Shutdowns are effective in achieving the goals they are implemented for.

Summary

To illustrate the social effects of shutdown in India, Shashank started the talk by narrating the story of a school girl from Darjeeling (West Bengal), who was unable to apply for her higher education due to an Internet Shutdown of more than 100 days in her home town. He proceeded to then explain the definition of Internet Shutdowns (as adopted by SFLC.in) i.e. a government imposed disablement of access to the Internet, as a whole, within one or more localities for any duration of time. SFLC.in does not consider blocking of certain services or throttling of the network as an Internet Shutdown, he said.

He then moved on to informing the audience that India holds the number one position of all countries in the world to shutdown the Internet in the year of 2018. This year India has also seen the maximum shutdowns (125 at the time of giving the talk) since 2012, when one of the very first instances of an Internet Shutdown was reported in the country, he told the audience. Shutdowns are not uniformly imposed in all regions of India and they are not deployed for the entire country. They have been concentrated in few regions of the country like – Jammu and Kashmir, Rajasthan and West Bengal, with the most shutdowns being reported from the Jammu and Kashmir region.

For the legal backing of Internet Shutdowns in India, he informed the audience that before last year i.e. 2017, governments across India had been using an archaic law, which was generally used in situations of public unrest to impose Internet Shutdowns (Section 144 of the Code of Criminal Procedure, 1973). In 2017, the central government introduced rules under a British era law called the Telegraph Act, 1885 to formalise the procedure for imposing Internet Shutdowns in India. The rules called the – Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, introduced mechanisms of imposing a shutdown; reasons to be given for imposing a shutdown; and the formation of a review committee for ensuring that shutdowns are imposed by the due process of law. Crucially, these rules do not establish a formal mechanism of reporting the instances of shutdowns being imposed.

Moving on to the economic effects of Internet Shutdowns, Shashank told the audience that as per a study conducted by the Indian Council for Research on International Economic Relations (ICRIER), the internet shutdowns imposed between 2012 and 2017 costed the Indian economy a sum of nearly $3.04 billion. Similarly, according to a study conducted by the Center for Technology Innovation at Brookings, between July 1, 2015 and June 30, 2016, economic losses to India due to Internet Shutdowns are - $968 million.

Moving on to the work SFLC.in has been doing in India around Internet Shutdowns, Shashank told the audience that SFLC.in had been actively and comprehensively tracking shutdowns in India from the year 2012. SFLC.in maintains a real-time dynamic tracker at <https://internetshutdowns.in/> and has recently published a detailed report on Internet Shutdowns in India capturing the extent, socio-economic effects and the legal backing of shutdowns in India. SFLC.in has also filed ‘Right to Information’ applications with state governments under the Right to Information Act, 2005, to inquire about the extent of shutdowns in every state. Recently, SFLC.in has updated its tracker to retrospectively update un-reported shutdowns based on replies received to right to information applications from the state of Rajasthan.

To conclude, Shashank stated that barring the concerns of public safety and national security, India has started seeing instances of Internet Shutdowns for – avoiding cheating in exams and during public festivals. He also said that it is unclear whether Internet Shutdowns are effective in achieving the goals they are implemented for.

For related posts on Internet Shutdowns, you may click here and here.
 

All Posts | Jul 14,2018

Meet the latest threat to public safety: Cheating during examinations

On Thursday, July 12, 2018, it was reported by several media outlets that the Rajasthan Police had obtained permission from the Government to suspend Internet Services for two consecutive days i.e. 14th and 15th July as a precautionary measure to prevent cheating during the Police Constable recruitment examinations. Despite initial reports that the shutdowns would remain confined to areas within a five kilometer radius of examination centers, Internet services are likely to remain unavailable across most if not all of the state owing to the apparent infeasibility of hyper-localized shutdowns. The Udaipur Superintendent of Police was quoted by UdaipurBlog as saying, “On both 14th and 15th July, Internet services would be unavailable in the city. Initially, we tried to ban Internet services in only those areas of the city where the centers of these exams were. But since the city has 24 exam centers, it would be difficult to ban Internet in specific areas. Hence, it is possible that the Internet would be unavailable in the entire district.

While Internet shutdowns have become almost a standard state response during law and order situations in India, it is still highly unusual to see a shutdown being imposed to prevent cheating during examinations. That being said, this is not the first time an Internet shutdown was ordered in Rajasthan to prevent cheating during examinations. Earlier this year on 11th February, 2018, Internet services were suspended in the districts of Jalore, Dhaulpur and Sikar for several hours to prevent cheating during the Rajasthan Eligibility Examination for Teachers (REET).

It is worth taking a look at this point at the legal framework governing Internet shutdowns in India, so as to understand how shutdowns come to be imposed for reasons such as preventing cheating during examinations. The relevant laws to consider are Section 5(2) of the Indian Telegraph Act, 1855 (hereinafter, “the Act”), and the Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 (hereinafter, “the Rules”).

According to Section 5(2) of the Act, Central/State Governments or their authorized officers can, among other things, prevent the transmission of any telegraphic message or class of messages during a public emergency or in the interest of public safety, if it is considered necessary or expedient in the interest of (1) sovereignty and integrity of India; (2) security of the State; (3) friendly relations with foreign states; (4) public order; or (5) preventing incitement to the commission of an offence. As the term “telegraph” is very broadly defined under the Act, Section 5(2) can be interpreted to authorize Internet shutdowns as well.

The procedure to be followed when suspending Internet services under the authority of Section 5(2) is specified by the Rules. According to the Rules, Internet services can be suspended only by a reasoned order issued in writing by the Central or State Home Secretaries, or by an authorized officer not below the rank of Joint Secretary in unavoidable circumstances. The Rules also specify among other things that the Centre and States shall constitute Review Committees that will meet within five working days of the issue of Internet shutdown orders to review compliance with Section 5(2) of the Act.

It is evident from the language of both the Act and the Rules that suspension of telegraph/telecom/Internet services was contemplated only as a response to public emergencies or in the interest of public safety. A vast majority of Internet shutdowns recorded in India since 2012 have also been consistent with this line of thought, as the primary motivation behind these shutdowns has been preventing the circulation of rumors and misinformation online that in turn could escalate law and order breakdowns. While it would take an incredible stretch of logic to say that “cheating during examinations” constitutes a public emergency or threat to public safety, the fact that such terms and others employed by Section 5(2) of the Act are undefined in the Telegraph Act or elsewhere means that it is entirely up to the subjective interpretation of the issuing authority to determine what qualifies as a public emergency or threat to public safety. Though the Central and State Review Committees established by the Rules are meant to prevent overbroad 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. 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.

Of all the countries in the world, India has the distinction of being home to the highest number of Internet shutdowns, that too by a very wide margin. According to our Internet Shutdowns Tracker, 70 shutdowns were recorded across India in 2017 alone, and there have already been at least 68 shutdowns halfway into 2018. If Internet shutdowns continue to rise in number and frequency as they have rapidly done since 2012, the future of a Digital India will be in serious jeopardy. Internet shutdowns, even as a state response to law and order situations, must be urgently reevaluated considering the extent of harm it causes to the economy and the larger society. It is imperative for our law makers and enforcers understand that Internet shutdowns, while offering an extent of control in the short term, will cause incredible damage to the nation in the long term if left unchecked.