Government of India issues rules for Internet Shutdowns
It seems that the Ministry of Communications, on August 7th 2017, issued (and notified) rules for shutting of telecom services – and by extension, the shutting down of Internet services in India. The notification for the rules is available here, issued under the Telegraph Act.
1. Who can issue such an order?
- Central government: The Secretary, Home Ministry, can issue an order to the Secretary of the Home Department of the state, in case of an order by Government of India. In unavoidable circumstances, this might be issued by a Joint Secretary (or of a rank above) authorised by the Union Home Secretary, and will be subject to a review from the the Union Home Secretary within 24 hours.
- State Government: The Secretary to the State Government in-charge of the Home Department can issue an order in the case of a State Government. In unavoidable circumstances, this might be issued by Joint Secretary authorised by the State Home Secretary, subject to the review of the State Home Secretary within 24 hours.
2. How the orders will be conveyed to telecom operators / ISPs
- Telecom operators, ISPs and “telegraph authority” (seriously?) need to have designated officers in every licensed service area, State or Union territory, to receive and handle orders for shutdowns. They’ll be sent orders by “an officer not below the rank of Superintendent of Police or of the equivalent rank”
4. How will the order be reviewed?
- The issued order will have to be sent to a review committee within the next working day.
- The Central Government review committee (for their orders) shall the Cabinet Secretary as chairman, and as members: Secretary to the Government of India In-charge, Legal Affairs; Secretary to the Government, Department of Telecommunications.
- The State Government review committee shall have Chief Secretary as its Chairman, and as members: Secretary Law or Legal Remembrancer In-Charge, Legal Affairs; Secretary to the State Government (other than the Home Secretary).
- “The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the said Act.”
Internet Shutdowns have been increasing in India
We’re mid-way through 2017, and according to SFLC.in’s Internet Shutdowns tracker, there have, so far, been as many as 42 Internet Shutdowns in India this year. With four months still to go in the year, this is already more than the number of shutdowns in the entire year last year – 31, and thrice the number of shutdowns in 2015.
In May, two UN Special Rapporteurs had been very critical of the Indian governments decision to shut down specific social media apps in Kashmir, and Internet Shutdowns in general, and asked for connectivity to be restored. The statement had said that:
“The scope of these restrictions has a significantly disproportionate impact on the fundamental rights of everyone in Kashmir, undermining the Government’s stated aim of preventing dissemination of information that could lead to violence”
“The internet and telecommunications bans have the character of collective punishment, and fail to meet the standards required under international human rights law to limit freedom of expression”, and “Denying such access disrupts the free exchange of ideas and the ability of individuals to connect with one another and associate peacefully on matters of shared concern.”
There are no easy answers here, given that Internet Shutdowns are essentially the suspension of fundamental rights and the imposition of a curfew, under Section 144 of the CrPC (Code of Criminal Procedure), targeting unlawful assembly.
Section 144 of the CrPC can usually be invoked by a district magistrate or the collector. To curb incidents of riots or mobs, magistrates or district collectors cut mobile Internet to stop the spread of rumours on social media, which may lead to rioting. Essentially, an Internet Shutdown, as is the case with curfews, is the acceptance of the governments inability to maintain law and order, and the our governments have failed to do this often in the past few years.
This move takes power away from the district collector, and vests it with a more centralised authority, providing greater oversight to decision making. However, as it was argued in our discussion on the Internet Shutdowns, when district magistrates/collectors can be given the right to give shoot on sight orders, why not Internet Shutdowns? Perhaps this is because the imposition of shutdowns has risen disproportionately, and there hasn’t been a sufficient enough of a review process.
Two points of criticism
- What is lacking here, though, is transparency in the process: how do citizens assess whether the decision to issue an Internet Shutdowns was necessary and proportionate, even it has been issued by the Central or State Home Secretary?
- There was no public consultation regarding these rules: views of civil society and industry ought to have been taken.
Disclosure: MediaNama had submitted views of attendees of its Internet Shutdowns event in December, on request from MEITY. Our coverage of the proceedings:
- The impact of Internet shutdowns
- Why governments shut the Internet down, and legal issues with their approach
- Alternatives to Internet shutdowns
Gazette of India Notification
MINISTRY OF COMMUNICATIONS
(Department of Telecommunications)
New Delhi, the 7th August, 2017
G.S.R. 998(E).—In exercise of the powers conferred by section 7 of the Indian Telegraph Act, 1885 (13 of 1885) (hereinafter referred to as the said Act), the Central Government hereby makes the following rules to regulate the temporary suspension of telecom services due to public emergency or public safety, namely:-
1. (1) These rules may be called the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. (1) Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent authority), and in unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be:
Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order: Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours.
(2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee latest by next working day.
(3) The directions for suspension issued under sub-rule (1) shall be conveyed to designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses under section 4 of the said Act, in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic communication and its implementation shall be determined by the telegraph authority.
(4) The telegraph authority and service providers shall designate officers in every licensed service area or State or Union territory, as the case may be, as the nodal officers to receive and handle such requisitions for suspension of telecom services.
(5) The Central Government or the State Government, as the case may be, shall constitute a Review Committee.
(i) The Review Committee to be constituted by the Central Government shall consist of the following, namely:-
(a) Cabinet Secretary -Chairman;
(b) Secretary to the Government of India In-charge, Legal Affairs -Member;
(c) Secretary to the Government, Department of Telecommunications -Member.
(ii) The Review Committee to be constituted by the State Government shall consist of the following, namely:- (a) Chief Secretary -Chairman; (b) Secretary Law or Legal Remembrancer In-Charge, Legal Affairs -Member; (c) Secretary to the State Government (other than the Home Secretary) -Member.
(6) The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of section 5 of the said Act.