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All Posts | Jan 11,2020

SC judgment – Safeguards for shutdown, limited relief for Kashmir

SC judgment – Safeguards for shutdown, limited relief for Kashmir

The Supreme Court pronounced judgment in Anuradha Bhasin v UoI [WP(C) 1031/2019] and Gulam Nabi Azad v UoI [WP(C) 1164/2019] on January 10, 2020. The judgment has laid down the law on the issue of Internet shutdowns.

Case in brief:

Mobile and broadband Internet services were suspended in Jammu and Kashmir on August 4, 2019 prior to the repealing of Article 370 of the Constitution of India. A petition was moved by Anuradha Basin, the executive editor of Kashmir Times. This petition challenged the curbing of media freedom in the state. The petition claimed that the media in the erstwhile state cannot practice their profession owing to the internet as well as telecommunications shutdown in the state. A similar petition was moved by Gulam Nabi Azad seeking issuance of an appropriate writ to set aside, quash any orders, notifications, directions or circulars issued by Government of India under which all/any modes of communication have been shut down. Further an appropriate writ was asked to be issued which would immediately restore all modes of communication including mobile, internet and landline services throughout the state. so that the media could practice its profession

Issues:

The Main issues framed by the Apex court were -

  • Could the Government claim exemption from producing all orders under Section 144 of CRPC?

  • Does Practice of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India over the internet constitutes a fundamental right?

  • Is the exercise of Prohibiting internet service by the Government valid?

  • Were the imposition of restrictions under Section 144 of CRPC valid?

  • Was the Freedom of the Press of petitioner(Anuradha Bhasin) violated due the restrictions imposed on the State?

What the Court held?

1. Access to the Internet and exercise of fundamental rights: The Court did not express any view on declaring the right to access the Internet as a fundamental right as this was not canvassed by the counsel for the petitioners. However, the Court held 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 entail that any curtailment of internet access have to be reasonable and within the boundaries laid down by Art. 19(2) and 19(6) of the Constitution.

2. Orders to be published: The apex court directed that all orders under S.144 of Cr.P.C as well as under the Telecom Suspension Rules have to be published. The Court held that although the Suspension Rules does not provide for publication or notification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. This will go a long way in ensuring that the suspension orders can be challenged under Art.226 of the Constitution before the concerned High Courts. Many applications under the RTI Act filed by SFLC.in were rejected by the authorities in various states, including the state of Jammu and Kashmir, citing national security as a reason.

3. Reasoned order to be passed: The Court held that Rule 2(2) of the Telecom Suspension Rules, 2017 requires every order passed by the competent authority to be a reasoned order. The Court further held that if an authorized officer is passing the order in unavoidable circumstances, the officer should indicate the necessity of the measure as well as the “unavoidable” circumstance necessitating his passing such an order.

4. Proportionality principle: The Court held that any curtailment of fundamental rights should be proportional and that the least restrictive measures should be resorted by the State. Although the state opposed selective access to internet services based on lack of technology, the Court held that if such a contention is accepted, then the Government would have a free pass to put a complete internet blockage every time and that such complete blocking/prohibition perpetually cannot be accepted. The Court further held that complete broad suspension of Telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’ and that the State must assess the existence of an alternate less intrusive remedy.

5. Suspension to be temporary in nature: The Court held that suspending internet services indefinitely is impermissible. It directed that the review committee must meet within 7 days of the previous review and look into compliance with requirements of Section 5(2) of the Telegraph Act as well as the proportionality of orders.

6. Orders under Section 144 of Cr.P.C to state material facts: The court held that power under Section 144 of CRPC is remedial as well as preventive and can be exercised when there is both a present danger as well as apprehension of danger. The danger should be in the nature of Emergency. Further, Section 144 cannot be used to suppress expression of opinion. Any order passed under Section 144 should state material facts to enable judicial review. The Court further stressed that principles of proportionality should be used and the least intrusive measure applied. The Court held that there shouldn't be repetitive use of Section 144 as well as it would amount to abuse of power.

Relief for the aggrieved

The contentions advanced by the respondents regarding terrorists threat and law and order seems to have swayed the court as the extensive treatise on proportionality in the judgment was not applied in the case of the prolonged shutdown in Kashmir. Although the Court held that suspending internet services indefinitely is impermissible, this was not applied to the shutdown in Kashmir that has been continuing for more than 5 months. The only relief granted was a direction given to the State review all orders suspending internet services forthwith. A further direction was given to allow government websites, localized/limited e-­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.

Looking forward

The positive aspect of the judgment is that the Apex Court has laid down the law on Internet shutdowns with emphasis on proportionality and reasonableness. The need to issue reasoned orders along with the mandate to make all orders public could result in reduction of arbitrary shutdowns. Removing the veil of secrecy from shutdowns itself could help in reducing the number of shutdowns. The Kerala High Court Judgment talks about Right to Education and Right to Privacy. These rights are not considered in the Judgment. The number of shutdowns in 2020 would determine whether this judgment has helped in protecting the rights of the citizens.

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 | Jan 28,2019

SFLC.in Shortlised for 2019 Index on Censorship Freedom of Expression Awards

SFLC.in has been nominated for 2019 Index on Censorship Freedom of Expression Awards. In total, 16 nominees were selected from over 400 crowdsourced nominations. The awards are given in four categories: Arts, Campaigning, Digital Activism and Journalism. The awards seek to honour individuals or organisations who have had a ‘demonstrable impact in tackling censorship’. Many of the nominees ‘face regular death threats, others criminal prosecution or exile. Some are currently in prison for daring to speak out against the status quo.’ The judges include investigative journalist Maria Ressa, one of Time magazine’s people of the Year 2018 and actor-activist Khalid Abdalla.

Index on Censorship describes itself as a non-profit that campaigns for and defends free expression worldwide. They publish work by censored writers and artists, promote debate, and monitor threats to free speech. Index on Censorship directly supports groups and individuals facing censorship through their Freedom of Expression Awards Fellowship. The fellowship offers a year-long programme of tailored support to a small group of fellows selected for their outstanding work in the fields of journalism, arts, campaigning and digital advocacy.

Based on the Index of Freedom’s announcement, nominees include ‘exiled street artist Ms. Saffaa whose murals highlight women’s rights and human rights violations in Saudi Arabia; Nigeria’s Institute for Media and Society, which goes to great lengths to improve the country’s media landscape by challenging government regulation and aiding the creation of community radio stations in rural areas; Colombia’s Fundación Karisma, which fights back against internet trolls and promotes freedom of expression online; and The Center for Investigative Reporting of Serbia (CINS), an independent group of investigative journalists exposing corruption in the country.’

SFLC.in has been selected in Digital Activism category. The announcement mentions SFLC.in tracking ‘internet shutdowns in India, a crucial service in a country with the most online blackouts of any country in the world. The tracker was the first initiative of its kind in India and has quickly become the top source for journalists reporting on the issue. As well as charting the sharp increase in the number and frequency of shutdowns in the country, the organisation has a productive legal arm and brings together lawyers, policy analysts and technologists to fight for digital rights in the world’s second most populous country. It also provides training and pro-bono services to journalists, activists and comedians whose rights have been curtailed.

We feel humbled by this nomination and thank Index on Censorship for it. We will continue to focus on our work with a renewed passion.

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 | Sep 12,2018

RTI Applications to MP & UP about number of Internet Shutdowns: Dismissed & Returned

Governments across the world often impose Internet Shutdowns as a means to order blanket ban on Internet services in an area for a duration. These blanket bans are imposed for a variety of reasons ranging from prevention of spread of misinformation to prevention of cheating in examination.

We at SFLC.in have been tracking incidents of Internet shutdowns across India in an attempt to draw attention towards the number and frequency of shutdowns. This data is made publicly available in the form of an interactive Internet Shutdown Tracker hosted on our dedicated website www.internetshutdowns.in, which also features additional resources on the topic.

On the basis of our tracker, we can safely state that India has seen an alarming increase in the number and frequency of shutdowns. Whereas in 2012 we recorded only 3 shutdowns across India, while as of September 2018 we have already recorded 109 shutdowns in 9 months across the nation. Another notable takeaway is that India has witnessed the highest number of Internet shutdowns in the entire world.

At present, there is no obligation in India on Telecom Service Providers or State Home Departments to inform users about Internet Shutdowns. In the absence of any reliable means to gain access to Internet shutdown orders issued by various Government agents, most of the data collected by our tacker is based on media reports (online and print). We realize that relying solely on media reports is not a foolproof method of tracking shutdowns. With this in mind, when we launched a dedicated website for our Internet shutdowns project, we did so with a new citizen reportage mechanism, i.e. a mechanism that allows citizens to bring instances of shutdowns to our attention. We later expanded our citizen reportage tools to give people the ability to provide inputs on how shutdowns affected them and their communities. Nevertheless, most of the data recorded by our tracker continues to be secondary, which means that it is entirely possible for shutdowns that are not reported by the media or affected citizens to be absent from the tracker.

As per the Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 – the current enabling legislation for Internet shutdowns – the ‘competent authority’ which may issue directions to suspend telecom services are: the Secretary in the Ministry of Home Affairs or the Secretary to the State Government in-charge of the Home Department, in cases of Central Government or State Government respectively. In order 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 various State Home Departments across India. The RTI Application was filed 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?”. This time-frame was chosen because the Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 was enacted on August 8, 2017, and there was a good chance that consolidated data on shutdowns imposed under the Rules would be available with Central and State Home Departments.

We received information from district level departments of Rajasthan in response to the RTI application filed by us. The responses received from the Rajasthan Government have been collated and the unreported shutdowns have been added on tracker. On the basis of those responses, we found that there were at least 26 unreported instances of Internet shutdowns in Rajasthan alone during the eight-odd months in question. In July we published a detailed blogpost about the responses from Rajasthan to our RTI applications.

However, we have not received required information from every state. Some states, including Madhya Pradesh and Uttar Pradesh, have dismissed and returned our applications. The Home Department of the Government of Madhya Pradesh dismissed our application stating that the Information that has been requested through the RTI application falls within the ambit of Home Department C Wing which has been exempted from the RTI responses vide Notification No. F. 11-39-2005-I-9-RTI. On the other hand, the Home Department of Uttar Pradesh replied stating that our application had been forwarded to Police Head Office of Lucknow, UP to furnish the details in question to us. The Police Department returned the application submitting that the information sought requires technical support which they lack, therefore they will be unable to provide us the required information.

Scanned copies of responses that we have received as replies from the RTI applications filed in Madhya Pradesh and Uttar Pradesh:

All Posts | Aug 27,2018

Panel Discussion at APrIGF 18: Internet Restrictions in Asia Pacific Region and How to Mitigate.

The Asia Pacific Regional Internet Governance Forum (APrIGF), 2018 was held in Port Vila, Vanuatu from 13th to 16th August.

Each year, the APrIGF serves as a multistakeholder platform for discussion, exchange and collaboration at a regional level and also where possible, to aggregate national IGF discussions that ultimately advance the Internet governance development in the Asia Pacific region.

This year, on the Day 3, 16th August 2018 Mr. Maheeshwara Kirindigoda (ISOC Sri Lanka) organized a panel discussion titled “Internet Restrictions in Asia Pacific Region and How to Mitigate.” The Panel constituted Mr. Maheeshwara Kirindigoda (ISOC Sri Lanka), Mr. Waqas Hassan (PTA, ISOC Islamabad), Mr. Shreedeep Rayamajhi (ICANN, ICT4D, Rayznews) and Ms. Tripti Jain (SFLC.in). The discussion was moderated by Mr. Rajnesh Singh (APrIGF, ISOC Asia Pacific)

The panelists for the session focused on three main issues:

  • How Internet Restrictions or Shutdowns have become a Global concern?;

  • Why is the Government resorting to the idea of Internet Shutdown; and

  • What are the effective ways to mitigate the issues/reasons for shutdowns instead of resorting to such shutdowns?

Mr. Rajnesh Singh began with an introduction to the issue of Internet restrictions or shutdowns and how these order for bans affect people globally. He then went on to cite various instances of shutdowns across the globe highlighting concerns arising from these impositions. He also brought to notice that Access to Information & Communication Technology is a Human Right, sanctioned through ITU by United Nations. In this sense, Internet shutdown result in a denial of human rights.

Tripti Jain (SFLC.in) shared experiences from India with respect to Internet Shutdowns. She emphasized that India has seen the highest number of Internet Shutdowns in the world. She then mentioned that SFLC.in has been recording shutdowns since 2012. SFLC.in has recorded 375 instances of Internet shutdowns so far on their tracker, located at https://internetshutdowns.in/. She then highlighted that the numbers from their tracker may not be accurate because it is based primarily on information from secondary sources, i.e newspapers and reports from individuals. Therefore, the tracker fails to take into account many unreported instances of Internet shutdowns. She also discussed the failure of government and the private sector to record and report report instances of Internet Shutdowns in India. She mentioned SFLC.in’s research and stated that we have filed an RTI (Right to Information Application) this summer to the Home Department of Rajasthan (a large state in India) as a result of which we found that there have been over 26 instances of Internet Shutdowns in 8 months that were not reported by newspapers. She discussed the procedural and executive concerns regarding legal provisions to impose Internet Shutdowns in India.

Mr Waqas Hassan discussed about the scenario in Pakistan with respect to Internet Shutdowns/ Restrictions. Mr. Hassan was representing the Government on the Panel and from his experience, he stated that one must always amicably engage with the government in order to reach a desired consensus. He also highlighted that over the years Pakistan has seen positive changes and that there has been a considerable decrease in the number of shutdowns ordered, however there's still a long way to go. While talking about restrictions on the Internet, he mentioned about the Judicial stances during the times of spread of misinformation.

Mr. Maheeshwara dealt with concerns of Sri Lanka along with the rest of the world with respect to the issue of Internet restrictions. He emphasized upon the reasons behind such orders. He cited various occasions on which Internet shutdowns were imposed across various parts of the world. He identified that Governments across the world have claimed national security as the primary reason to impose Internet shutdowns. He also discussed how most shutdowns are politically driven.

Mr. Shreedeep discussed his concerns with increasing number of Internet shutdowns in India and across the globe. He also stressed upon the economic impact of these shutdowns.

Key Takeaways:

  • Internet Shutdowns have become a global concern in today’s digital age with a rapidly rising number of shutdowns across various nations.

  • Governments of the world often claim national security as the primary reason to push the kill switch, however in various nations including India, Internet shutdowns are often ordered for frivolous reasons such as prevention of cheating during examinations.

  • It has also been observed that Internet Service Providers and websites often attempt to notify their users before restricting access for maintenance of their networks. However, when Governments order shutdowns, there is often no prior notice.

  • The ripple effects of orders to impose an Internet shutdown are very severe. It leads to economic loss, lives are at risk during riots and disasters, it hampers education and affects healthcare, and the ability to exercise one’s rights such as free speech is hampered, among others.

  • There is a need to study the effectiveness of Internet Shutdowns to ensure national security viz-a-viz economic loss ensued by the state in the process.

All Posts | Aug 09,2018

Parliament ’s last opportunity to Modify/Annul Telecom Suspension Rules 2017?

Prior to the notification of Temporary Suspension of Telecom Services, Internet shutdowns were ordered under two statutes i.e 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 August 7th, 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’. 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. Mr 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 there was 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 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 People's Union for Civil Liberties v. Union of India[fn]AIR 1997 SC 568[/fn] 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 the independence and impartiality due to apparent conflict of interest when the authorization, conduct and review is carried out by a single arm of Government machinery. The public oversight principle is therefore not complied with.

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 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 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.

Lastly, 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 unaware 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.

A Rajya Sabha MP, Mr. 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 July 31st 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 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.[fn]Chapter 26, Rajya Sabha at Work, List of Statutory Orders laid during a session, Page no. 794(23 of 59) https://rajyasabha.nic.in/rsnew/rsat_work/archive/chapter-26.pdf [/fn]

Similarly, after introduction of Telecom Suspension Rules 2017, the Secretariat on Tuesday, December 26, 2017, after the end of Winter session 2017, 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 December 15, 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.[fn]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.]"[/fn] The Rules were laid in Winter Session that convened on 15th December 2017 and ended on 5th January 2018 which means 22 days and 14 sittings in 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.