New Delhi: In its response to a recent report by US non-profit organisation Freedom House that claimed India’s status as a free country has declined to “partly free”, the Narendra Modi government has said that the characterisation is “misleading, incorrect and misplaced”.
A rebuttal to the report was recently issued by the Press Information Bureau which takes umbrage with several issues, one of which is the organisation’s characterisation of India’s Internet shutdowns.
“State and central governments have repeatedly suspended mobile and internet service to curb protests in recent years, including in 2020. Peaceful demonstrations take place regularly in practice, although the pandemic led to fewer such events being held in 2020…,” the Freedom House report noted.
“The national government and some state governments used assembly bans, internet blackouts, and live ammunition between December 2019 and March 2020 to quell widespread protests against the CAA and proposals to roll out a citizens’ registration process across the country.”
The Centre’s response to Freedom House’s observations – which also separately publishes an ‘Internet Freedom’ score for all countries – was to merely note that all suspensions of telecom services are governed through the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which are issued under the provisions of the Indian Telegraph Act, 1857.
“These temporary suspensions need authorization of the Secretary to the Government of India, in the Ministry of Home Affairs, in the case of the Central Government; or of the Secretary, in-charge of the Home Department, in the case of a State Government,” the PIB release noted.
“Moreover, any such orders are reviewed by the Review Committee… Hence, the temporary suspension of telecom/internet services is resorted to with the overarching objective of maintaining law and order under strict safeguards,” it added.
What does this leave out?
This two paragraph defence – particularly the part about how the telecom suspension rules secure law and order with strict safe-guards – does a disservice to genuine concerns that have been raised by privacy experts and civil liberties groups.
There is no doubt that the 2017 rules are an important upgrade to how Internet and telecom shutdowns were imposed earlier, and they lay down a coherent procedure that must be followed, which includes a review process.
But the rules themselves contain poorly drafted language and vague terms; not to mention that even four years after their passing, they are still not followed properly in some states.
For instance, they clearly state that the temporary suspension of telecom services can take place only for a “public emergency or public safety”. And yet, several state governments make a mockery of this high legal standard and routinely suspend Internet services to deal with far less weighty matters, such as to prevent cheating in school and college examinations.
In late 2020, the Arunachal Pradesh state government even suspended Internet connectivity in 15 of its districts to ensure that no cheating took place during the state’s civil service exams.
What’s worse is that some states don’t even follow the procedure laid out by the rules properly.
A 2019 investigation by the Internet Freedom Foundation (IFF), a New Delhi-based digital rights think-tank, found that in Rajasthan, both the Vasundhara Raje and Ashok Gehlot governments allowed Internet shutdown orders to be issued by divisional commissioners, who lack the authority to suspend telecom services.
“None of the internet shutdown orders supplied to us have been issued by the competent authority under the Temporary Telecom Suspension Rules 2017… On 28 September 2018, the Department of Telecommunications of the Central Government had warned the Rajasthan Government against delegating these powers to Divisional Commissioners and stated that the Rajasthan Government should reconsider its decision to delegate these powers to Divisional Commissioners and ensure that the Rules are followed strictly. Despite this, there are several orders issued by Divisional Commissioners in 2019 suspending telecom services including in the wake of the recent Ayodhya judgement,” the IFF noted.
“In Rajasthan, there have been several instances of Divisional Commissioners imposing internet shutdowns based on mere apprehension of protest or agitation against the government…in Sikar District when a bandh was called to criticize the conduct of the police in an abduction case, internet services were suspended for 38 hours vaguely citing apprehensions about circulation of rumours.”
SC intervention and Kashmir
The broader problems with the 2017 Rules were exposed in the wake of the Internet clampdown in Kashmir in late 2019 and the Supreme Court in its judgement in Anuradha Bhasin v. Union of India.
The apex court significantly noted that the Telecom Suspension Rules had several gaps that needed to be addressed. Consequently, it ordered that all Internet shutdown orders need to be made publicly available (in the interest of natural justice), that the orders must specify a time limit (i.e, there cannot be an indefinite suspension) and that the ‘review committee’ constituted under the rules must review all orders every 7 working days to determine their necessity.
The Centre went on to amend the Rules in November 2020, inserting a new provision that states that “the suspension order issued by the competent authority under sub-rule (1) shall not be in operation for more than fifteen days.”
However, as experts have pointed out, the Modi government clearly missed the opportunity to write into the Telecom Suspension Rules other important parts of the SC judgement, particularly the need for the appropriate authority to publish all Internet shutdown orders and make them public.
This assumes special importance, because several states like Gujarat and Andhra Pradesh have refused to comply with parts of the apex court verdict. As the IFF has noted, “the Government of Gujarat has…. exempted Special Branches of the Home Department from disclosures which acts as a deterrent to demanding transparency for internet shutdowns in the state”.
Justifying a shutdown
Perhaps the most important aspect of the global criticism against Internet shutdowns that the Modi government misses is that bureaucrats, both at the Centre and state government level, are not required to provide justification for why a widespread clampdown is necessary.
One can argue that in dicey law and order situations, this may not be possible before passing a digital blackout order. But this also prevents such orders from being challenged or performing a cost-benefit analysis – after all, Internet shutdowns are a major blow to a local economy.
One analysis of Internet ban orders issued by Bihar (under the Telecom Suspension Rules) between 2017 and 2018 found that they all “copy paste the same boilerplate language about how the local administration apprehends that anti-social elements will spread objectionable content which could cause disaffection and disharmony or incite violence”. None of the orders mention any specific incidents which have given rise to this apprehension.
This is unfortunate as this bureaucratic hand waving becomes deeply problematic when communication clampdowns are issued in situations that have significant civil liberty concerns such as Kashmir or the CAA protests. In particular, it prevents experts from being able to evaluate the reasonableness and proportionality of the restrictions; a twin test laid out by the Supreme Court. Put simply, are bureaucrats resorting to this method during politically sensitive situations because there is no other option? Or is it the easy way out for them as seen with Internet shutdown orders to prevent cheating in exams?
This trend of ‘trust us, despite the enormous social and economic costs’ has continued with the recent farmer protests.
As a joint statement put out by several digital rights organisations noted, the Internet ban orders issued during the protests “impermissibly vague and they do not provide any specific facts and figures which would demonstrate proper application of mind prior to their issuance”.
“In fact, the use of internet shutdowns may be counterproductive because empirical studies suggest that internet shutdowns incentivize disorganized violence by cutting off channels for communication and coordination which are necessary for planned peaceful protests… Finally, these internet shutdowns have made it practically impossible for journalists to provide real time updates about the protests and taken away the farmers’ ability to present their version of events through social media. Since the farmers have raised serious concerns about the mainstream media not covering their protest in an accurate and fair manner, it is imperative that they are allowed to put forth their perspective through their own social media channels.”