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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.

 

 

All Posts | Mar 31,2017

MP Baijayant ‘Jay’ Panda speaks in Parliament against Internet shutdowns

On March 22, 2017, Baijayant ‘Jay’ Panda, Member of Parliament (Lok Sabha), raised the issue of Internet shutdowns in Parliament. Noting how Internet shutdowns are instituted by states under Section 144 of the Criminal Procedure Code, 1973 despite there being detailed provisions under the Information Technology Act, 2000 and Rules for the Central Government to block access to online content in public interest, and also how Internet shutdowns cause significant economic losses in digital economies, Mr. Panda urged the Central Government to formulate a rule-based system to oversee restrictions placed on Internet access. Such a rule-based system, he said, must make it clear that access restrictions are not to be arbitrarily imposed, must provide for an escalating manner of implementation, and must exempt essential services from the purview of restrictions imposed.

Watch the full address below:

All Posts | Jul 13,2016

Journey of Aadhaar – Graphical Illustration

The Aadhaar scheme has undergone scrutinies and challenges at various levels since its inception as the flagship program of the Unique Identification Authority of India (UIDAI) in 2006.  In its journey, there have been two separate Bills aimed at according it a statutory status, an extensive scrutiny by a Standing Committee, multiple challenges in the Supreme Court, and heated debates in the Parliament over the Aadhaar Bill, 2016 (now the Aadhaar Act). The following is a graphical illustration of the timeline, recording the entire Aadhaar process from 2006 to its present status. A text version of this timeline can be found here.

Graphical Timeline of the Journey of Aadhaar

 

All Posts | Mar 19,2016

How Parliament Debated the Aadhaar Bill, 2016

The Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016 (hereinafter Aadhaar Bill) was discussed, voted and passed in the Lok Sabha on 11th March, 2016. Many contentions were raised,clarified and debated upon by the Government and the Opposition but the Bill was passed in its original form through voice vote to the Rajya Sabha by the evening. On 16th March, 2016, the Rajya Sabha, discussed this bill for almost five hours and certain amendments were added before the Bill was sent back to the Lok Sabha. The same evening, Lok Sabha rejected the recommendations sent by Rajya Sabha and the Aadhaar Bill was passed in the form it was introduced on 3rd March, 2016. As per Article 109, for a money bill, Lok Sabha is not bound to accept the amendments made to the Bill by the Rajya Sabha. Per Article 111 of the Constitution, the President cannot return a money bill for reconsideration with his/her recommendations to the Lok Sabha. He is mandated, without discretion to give his assent. Therefore, Aadhaar Bill, 2016 could be law in a matter of few days.

Following is a report of the parliamentary proceedings that took place in the two houses in a week on the Aadhaar Bill, 2016

LOK SABHA

During the discussion in Lok Sabha with a quorum of 73 out of 545 members, many from the Opposition believed that the Aadhaar Bill was wrongly introduced as a Money Bill. Article 110 of the Constitution lays down the criteria for bills to be introduced as money bills. For the sake of explanation, clause (1) of the Article says that a bill would be deemed a money bill 'only' if its provisions deal with the criteria specified in sub clauses (a) to (g). In this regard, the Government has explained the money bill status of this Bill by using Article 110(c) that relates to the payment of moneys into or the withdrawal of moneys from Consolidated Fund of India, along with sub clause (g) that includes 'any matter incidental to any of the matters specified in sub clause (a) to (f)'. Rajeev Satav from the Indian National Congress questioned the legitimacy of this Bill as a money bill as in Section 57, it permits private entities to use Aadhaar for the purposes of establishing identity, thereby extending the scope from only expenditure incurred from Consolidated Fund of India. In response, justifying the money bill, Arun Jaitley, described Aadhaar as an 'enforcement mechanism' and only 'incidental' to the entire process of incurring expenditure from Consolidated Fund of India. He argued that the expenditure for subsidies and other government welfare schemes formed the core of the Bill proposed; thereby, making it a money bill.

Tatagatha Satpathy, Minister of Parliament from Odisha for Biju Janata Dal raised concerns regarding lack of privacy protection, introduction of Aadhaar as a money bill, and the loopholes in outsourcing the collection of data to private contractors. He argued that collection of such data, along with its linking to everyday activities like banking, and health makes it a medium to construct or de-construct a citizen. He further linked this with the menace of mass surveillance and issues of profiling with the example of NSA revelations in the United States by Edward Snowden. In a candid statement, Satpathy said that leaving room for other biological attributes to be added to the list of biometrics (as per Section 2(g)), could mean the future collection of DNA of the population, and a possibility for ethnic and racial cleansing. In addition, he cited a report of 20,000 fake Aadhaar cards being issued in a state and linked that with the manipulation that can happen in the entire database if the outside contractors, responsible for collection of personal information are influenced. Satpathy argued that the exception for disclosure of sensitive biometric information in interest of 'national security' was a vague and open ended provision. He ended with a statement to the filling in Speaker, "Sir, you know it, and I know it, this is not a Money Bill, Full Stop."

Another speaker, Asaduddin Owaisi from AIMIM argued that the Aadhaar bill did not comply with the Privacy principles recommended in the Justice A.P. Shah Committee Report of 2012; for example, the lack of notification to an individual if there is a breach of his personal data. He also raised issues of the absence of a right to be heard by the data subject when as per Section 33(1), the District Judge decides upon the disclosure of personal information of the individual concerned. He added that the prohibition on a court to take cognizance of an individual's complaint as per Section 47, thereby limiting an individual's recourse mechanism against the UIDAI is also troublesome. Furthermore, he expressed anguish with Section 7 of the Bill that gives an option to Central & State governments to make Aadhaar mandatory for availing subsidies, thereby moving away from the concept of Aadhaar being a mere entitlement as stated in Section 3(1). He also referred to the technical incapability of the biometric machinery to register accurate fingerprints of workers involved in mining and beedi manufacturing. Both, Asaduddin Owaisi and Tatagatha Satpathy raised a point about categorizing the subsidies that could be availed (and subsequently mandated) with Aadhaar; if these would be limited to the schemes eligible for Below Poverty Line (BPL) families, or even general government welfare schemes could be enveloped under this definition.

The Finance Minister gave a speech right before the voting on the Bill answering the doubts raised previously. He compared the present bill with the earlier National Identification Authority of India Bill, 2010 that was introduced by the UPA Government and reflected that the UPA bill had formulated the authority and the idea of biometric database, but the 2016 Bill improves upon it and instills in it the purpose of targeted delivery of benefits and subsidies. He said he would refrain from commenting on the issues of privacy, because the matter was still pending in the Supreme Court and it was upon the Hon'ble Court to decide on the constitutionality of this right. He added that Chapter VI of the Bill that details the clauses on security and protection of data are sufficient safeguards for an individual's personal information. On the point of the exception in Section 33(2) that allows for disclosure of an individual's core biometric and other information in the interest of 'national security', Mr. Jaitely remarked that no legislation, including the National Security Act defines this term. Its definition is contingent on the situation and if need be, it is upon the courts to decide its applicable scope.

During the proceedings, a considerable amount of members present in the Lok Sabha asked that the Bill be sent for further scrutiny to a Standing Committee. Nevertheless, the suggestion was not considered. At the closing of the discussion, the Aadhaar Bill was passed in its original form as a money bill through a voice vote in the Lok Sabha.

RAJYA SABHA

The Rajya Sabha experienced a heated discussion over this bill on 16th March, 2016. It was mentioned by many members that a challenge to the constitutional validity of Aadhaar was pending in the Supreme Court and hence sub judice. The Finance Minister at the very outset clarified that the doctrine of sub judice applies only to matters of 'individual culpability', and not to parliament's power to legislate. If such power of the legislature could be suspended, it would be against the principle of separation of powers enshrined in the Indian Constitution. On the point of privacy, Arun Jaitley remarked that 'probably, privacy is a Fundamental Right; it is too late in the day to say it is not.' With this, he further exclaimed that this right is not absolute and can be restricted based on fair, just, and reasonable procedure established by law. Moving on his speech, he defended the status of the money bill by stating that the test to be applied is to analyze if the pith and substance of the proposed legislation is expenditure from the Consolidated Fund of India; and merely because an authority is created for administrative purposes, does not obviate the status of a money bill.

Jairam Ramesh from the Indian National Congress suggested many amendments to the proposed Bill, beginning with a letter from a former Attorney General who confirmed Jairam's point that in 'pith and substance', the Aadhaar Bill was not a money bill. He asserted that his fundamental departure from the present bill is based on the fact that Aadhaar not be made mandatory, but remain voluntary. Moreover, calling it a 'Subsidy Sudhaar Program', Jairam contended that Aadhaar will not decide entitlement for the subsidy, but will merely be a proof of identity. Similar to the concern raised by Tatagatha Satpathy, he was also worried that the power given under delegated legislation to include other biological attributes in Section 2(g) at a later stage might cause greater problems. While making reference to a report that held that 40% Jan Dhan accounts were facing problems when being authenticated/used with Aadhaar, Jairam Ramesh raised concern over depending on an untested technology at a large scale. He ended his speech by urging the Finance Minister to send the Bill to a Standing Committee to produce an improved version for the law on Aadhaar.

Although many concerns raised in this house overlapped with those already debated upon in Lok Sabha, a few members sought clarification on issues not mentioned in the other House. Nadimul Haque of AITC reminded the house of the report from the Standing Committee of Finance that analysed the earlier Bill had held that a national data protection regime is a per-requisite for Aadhaar's operation. Satish Mishra from BSP reiterated the absence of a right to be heard in Section 33(1) and the lack of appellate mechanism in that regard. Rajeev Chandrashekhar, an independent Member had concerns about the extension of this scheme to residents and not just citizens of the country. He asserted that 'Aadhaar cannot distinguish between citizens and residents, non-citizens will be able to avail subsidies as a part of this scheme.' In addition, he feared that this method could be misused by miscreants and non-citizens for the purposes of identity laundering, and therefore adamantly opposed the use of Aadhaar for establishing identity as has been permitted in Section 57 of the Bill. Chandrashekhar insisted on judicial oversight while deciding the disclosure of personal information for purposes of national security as in Section 33(2).

In closing, while clarifying and responding to the questions raised, Arun Jaitley maintained that the exception for disclosure for reasons of national security corresponded to the reasonable restrictions of 'security of state' in the fundamental right guaranteeing free speech and in legislations like Official Secrets Act. It was recommended by Jairam Ramesh that the phrases 'public emergency', and 'public safety' be transposed from the provision for interception of electronic communication in the Telegraph Act. The Finance Minister replied that these expressions would import a wider meaning and larger room for interpretation as compared to the phrase 'national security'. On the mandatory nature of Aadhaar, he clarified that if one wants to avail a benefit or subsidy, enrolling in Aadhaar is mandatory. He drew parallels between the Social Security Number in the United States and the Aadhaar to maintain that both apply to residents, but do not imply citizenship of the country. While responding on the question of a right to be heard in Section 33(1), Jaitley remarked that in statutory interpretation, when the law is silent, it is general practice to read the right to be heard into the provision. Though, Sitaram Yechury from CPI (M) expressed dissatisfaction with the Finance Minister's explanations, the moving and voting on amendments and provisions of the bill proceeded.

During the voting, most of the clauses passed without any changes, but Jairam Ramesh insisted for the process of division of votes (and not just a voice vote) for four of his amendments. All these amendments were passed in the division process with extremely close calls. The first amendment amongst these was on Section 3 of the Bill and demanded that residents not be included for the purposes of Aadhaar. This amendment was passed with 76-64 votes. The amendment to Section 7 that permits Aadhaar to be made mandatory for securing benefits and subsidies of Government related schemes also passed the division process with the same margin of 76-64 votes. The third amendment pressed by Jairam Ramesh was the replacement of the phrase 'national security' to 'public emergency or public safety' in Section 33(2) and have an independent member like CVC or CAG in the Oversight Committee that reviews such directions for disclosure. This amendment passed with 77 Ayes and 64 Noes. The last amendment by him on the grounds of limiting the use of Aadhaar to only government schemes and not for other purposes as stated in Section 57 also passed with majority in the house by 76-65 votes. Subsequently, with the recommendations, the Aadhaar Bill was returned to the Lok Sabha for its perusal.

The Lok Sabha did not consider the recommendations on the Aadhaar Bill as given by th Rajya Sabha and passed it in its original form as had been released on 3rd March, 2016.

Please note that this report is a first hand account of observing the proceedings of both houses and hence, may not be substantiated by secondary references.