by Siddharth Narrain.
In the last post I laid out the background of how Internet shutdowns have become a global concern, and the impact that these shutdowns have had in countries like India, where they have been frequently used. I also discussed the legal regulation of these shutdowns, specifically the use of section 144 of the Code of Criminal Procedure (CrPC). In this post I will continue with the discussion around shutdowns, with a focus on more recent developments related to the state’s attempt to deal with these, as well as some more context of why these shutdowns have become so central to government response to law and order disturbances in India, especially during religious and group based riots and violence.
In August this year, the Department of Telecommunications (DoT), Ministry of Communications, notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 amending the rules of the Indian Telegraph Act, and allowing for the government to shut off internet and telecom access in a specific area, but making this decision subject to a number of regulations. This notification legitimised what the government was already doing, although it was only recently that the government was resorting to the Telegraph Act to enforce Internet bans. An example of this is the use of the Telegraph Act in April 2017 in the state of Jammu and Kashmir, where 22 social media sites were banned in the wake of widespread student demonstrations in the state. Jammu and Kashmir accounts for a large chunk of Internet shutdowns in the country, which, according to figures by the Software Freedom Law Centre have touched 62 in 2017 alone.
The regularity of Internet shutdowns in Jammu and Kashmir, led two United Nations Special Rapporteurs to issue statements specific to these shutdowns in May 2017. The UN Special Rapporteur on the Freedom of Opinion and Expression stated that the scope of the restrictions in Kashmir has a disproportionate impact on fundamental rights, and that internet and telecom bans in the region have the character of collective punishment. The UN Special Rapporteur on the situation of human rights defenders said “denying access to the Internet has the effect of disrupting the free exchange of ideas, and the ability of individuals to connect and associate peacefully on matters of shared concern”.
The Indian government has justified internet shutdowns as a logical extension of curfews and measures taken in the physical world that are meant to curb crowds and mobs from collecting, and to bring a tense situation under control. In fact, in the 2013 communal riots in Muzaffarnagar district, in Western Uttar Pradesh, where thousands of people were displaced, a Commission of Enquiry found that a key factor in the chain of events, was a video that circulated that supposedly showed a Muslim mob lynching two Hindu men (while it was later found that this video was taken out of context). While the inquiry report was never fully made public, the excerpts available in the media suggest that the report focuses extensively on the police’s inability to deal with the circulation of the video.
The government’s Telegraph Act rules can be seen as a move of both legitimising its actions related to shutting down the Internet, as well as providing for a mechanism of checks and balances to such an extreme measure. The new Rules, although brought in without any public consultation, aim to ensure that such measures are temporary and pass through a decision making process at the highest level of government. For instance, the order to shit down the Internet must be given at the level of the Home Secretary at the state and central levels, except for unavoidable circumstances where such an order could be passed by an officer holding the post of a Joint Secretary, who has been authorizes by the Home Secretary. Any such order has to be confirmed by a “competent authority”, although it is not clear what authority is being referred to. The Rules provide for a three-member review Committee that will have to meet within 5 working days to review such decisions. Further, the rules do not define what constitutes a public emergency or threat to public safety, an oversight that the government needs to correct.
Besides these rules the government already has the power to selectively pull the plug on Internet and mobile services, through the license agreements that grant licenses to telecom companies. For instance, a document that has been made public online, by the telecom company Telenor, shows that in India, Clause 39.15 of part 1 of the Unified License; Clause 41.11 of the Unified Access Service License; and clause 34.9 of the Internet Service Provider License allowed for the government to block the use of mobile terminals in certain areas. The licensee has to comply with such an order from the government within six hours of receiving such a request.
Thus there exists at least three ways that the government can cut off the internet, (usually mobile services, but sometimes both broadband and mobile services) – these are the license agreements signed with telecom companies; section 144 of the Code of Criminal Procedure and the newly notified Telecom Rules. The question though is whether these legal mechanism provide enough of a safeguard to ensure that Internet shutdowns do not become knew jerk reactions to law and order threats, routine measures that all government officials begin taking, as part of the routine course of law enforcement, instead of a measure that is taken in extreme or exceptional situations, where such a measure amounts to a proportionate response to a public emergency or a threat to public safety.
[This blog post is the second in a series of blog posts from the project “Law, religious violence and Internet and social media regulation in India” funded by ONLINERPOL.]
 http://www.dot.gov.in/sites/default/files/Suspension%20Rules.pdf, last accessed on 13 December 2017
 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21604, last accessed on 13 December 2017
 Authority Requests for Access to Electronic Communication: A Legal Overview, Telenor Group, March 2017, p. 38, available at https://www.telenor.com/wp-content/uploads/2015/05/Authority-Request-Legal-Overview_March-2017.pdf, last accessed on 13 December 2017