Last year, India witnessed more internet shutdowns—where the central or state governments temporarily suspend internet access in a particular region citing law and order problems—than any other country in the world. According to the Software Freedom Law Centre (SFLC), a legal services organisation that is involved in a global campaign against internet shutdowns, 31 such instances were reported in 2016. These cost the Indian economy around Rs 6,000 crore. This year, with three months still remaining, 55 shutdowns have already been reported. The frequency of shutdowns has become alarming—on 25 September, internet services resumed in the state of Darjeeling after over three months; the same day, services also resumed in Tripura after a four-day suspension. In Bihar’s Nawada district, an internet blackout began on 28 September.
The legal regime governing internet shutdowns has seen a curious evolution. Governments initially justified shutdowns on the back of Section 144 of the Code of Criminal Procedure (CrPC)—an amorphous legal provision that empowers a district magistrate with wide discretion to pass orders as she deems necessary for public safety. In 2015, the Gujarat High Court, in what is the only court ruling on shutdowns till date, upheld the use of Section 144 to impose internet shutdowns. The Supreme Court summarily dismissed the appeal against the ruling—the bench only suggested that a shutdown “becomes very necessary sometimes for law and order,” with no further comment.
The effective validation of the sweeping exercise of power under Section 144 is aggravated by the secrecy surrounding the issuance of these orders. For instance, in the case of a six-month long mobile internet ban in Kashmir following the death of the Hizbul Mujahideen commander Burhan Wani, a right to information application revealed that no state authority knew who imposed the ban. Similarly, an RTI application seeking information about the Darjeeling internet shutdown was declined, because the order authorising such indefinite shutdown was deemed “exempted from disclosure.”
Instead of reducing the instances of internet shutdowns and the lack of transparency plaguing them, the central government, it appears, is seeking to legitimise shutdowns by creating a regulatory framework for them. On 7 August, the Ministry of Communications notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, or Suspension Rules, under the Indian Telegraph Act, 1885. The process leading to the notification of these rules, too, was shrouded in secrecy. Perhaps as a result, the rules suffer from serious defects in the manner in which it envisions a suspension of internet services, as well as a lack of safeguards that would restrict the harms of shutdowns.
The notification states that the rules seek to “regulate the temporary suspension of telecom services.” It is important to note that “telecom services” has not been defined in the Telegraph Act or the Suspension Rules. The phrase may draw its meaning from the Telecom Regulatory Authority of India (TRAI) Act of 1997, which has defined it in a broad manner to include all telephonic services. The power to ban voice calls is a frightening prospect. However, the inevitable bad press, the violation of rights of free speech and association—similar to the rights violated during a shutdown, but to a greater degree due to the lack of effective alternatives for communication—and the potential risk to human life, makes it less probable that the government would exercise that option. Regardless of their implications for voice calls, however, the rules appear to target a normalisation of internet shutdowns. This calls for a detailed examination of the rules.