India’s Latest Draft Telecommunications Bill : Continuation of Vague Internet Shutdown Policies

28th January, 2023 - 7:02 am Categories: Social Media Technology Telecommunications 0 Comments

Introduction

The Government of India recently proposed the draft “Indian Telecommunications Bill, 2022”, hoping to overhaul the age-old laws that currently make up the regulatory framework for the telecom industry. The bill intends to supersede three pieces of legislation: “the Indian Telegraph Act, 1885”; “the Indian Wireless Telegraphy Act, 1933”; and “the Telegraph Wires (Unlawful Possession) Act, 1950”. The bill is intended to bring together regulations governing the provision of telecommunications services, networks, infrastructure, and spectrum. But the bill has some provisions that have raised the eyebrows of public rights experts and civil society organizations. The definition of telecommunication and telecommunication services has been widened, so now even OTT and social media platforms are within the ambit of the bill. The draft bill also confers wide-ranging powers on the government in matters of interception and surveillance, which can have a chilling effect on the right to privacy. But what we, in this article, are going to discuss is the Internet shutdown provision of the bill. We will take a look at the current laws that facilitate internet shutdowns along with discussing the frequency of their uses. At last, we’ll take a look at how the latest provision amplifies the existing power.

Current Laws Dealing With Internet Shutdown

Historically, internet shutdown orders were given under Sec. 144 of the CrPC.[1] Section 144 gives the “District Magistrate” and the police the authority to prohibit illegal crowd formations. This section was interpreted widely to incorporate internet shutdown powers. However, in 2017, the government notified “The Temporary Suspension of Telecom Services (Public Emergency or Public Safety)” under the Indian Telegraph Act 1885. The criteria for ordering a shutdown are not specified in the rules. It cursorily mentions that shutdown orders can be issued in instances of “public emergency” or when it is required for “public safety.” These two restriction parameters are left undefined under the rules, which leaves them open to the risk of being widely interpreted.[2]

[Image Source : Shutterstock]

According to the 2017 rules, the “Secretary to the Government of India in the Ministry of Home Affairs”, or in the case of individual states, the “Secretary to the State Government in-charge of the Home Department”, may issue an order for blocking telecom services in a particular area. Every such order is required by the Rules to include a justification for the granting of such directions. In cases of sudden exigencies, an officer with the rank of not lower than “Joint Secretary to the Government of India” with prior authorisation from “Union Home Secretary or the State Home Secretary”, depending on the situation, may give shutdown orders. However, the relevant responsible entity indicated above will need to validate such an order within 24 hours. In the absence of such confirmation, the order will expire after 24 hours. There is also a review committee that vets shutdown orders given by the authorities, but it is mostly comprised of government officials, so it cannot be said to be independent.

Frequency Of Internet Shutdowns In India

Since 2012, internet has been blocked 665 times in India, according to the Software Freedom Law Center (SFLC).[3] According to another study by the think tank Access Now, India has emerged as the nation with the highest number of internet shutdowns for the fourth year in a row, for reasons ranging from quelling rallies to fighting online fraud.[4] Authorities shut down the internet on purpose at least 182 times in 34 different countries in 2021. India, which tops the list, has shut down the internet at least 106 times, 85 of which have occurred in Jammu and Kashmir. The number of nationwide internet outages has steadily increased, frequently at the request of states or the central government for reasons of law and order or security. Out of the total 155 internet shutdowns worldwide in 2020, India experienced the most, with 109. According to another study conducted by Top10VPN, internet shutdowns have cost India $2.8 billion.[5] The world’s longest internet shut-down record is also with India, for 213 days of complete shutdown in Jammu & Kashmir following the revocation of Article 370.[6] After the 213^th day, only 2G services were restored, and 4G services remained blocked for a staggering 552 days in the state.[7]

What The Draft Telecommunications Bill Says About Internet Shutdowns

In 2021, the “Parliamentary Standing Committee on Communications and Information Technology” submitted a report in which it urged the government to bring changes to the 2017 rule because it is very vague and has various undefined terminologies (public emergency and public safety) that make its interpretation unnecessarily wide.[8] It further noted that no parameters had been established to determine the merits of a proposed internet shutdown and that shutdowns were being ordered based on subjective rather than objective assessments. Nonetheless, not only has the government failed to allay these concerns in the new bill, it has carried forward the same provisions of the 2017 rule against which the committee has raised concerns.

The proposed bill grants the government the authority to halt communications networks under provisions for “public emergency” or “public safety.” But that’s not it. It further states that the government has the right to “remove any telecommunication services, network, or infrastructure from a licensee or registered organisation for a temporary period of time.”[9] The government also has the authority to shut down the Internet “..in the interest of the sovereignty, integrity, or security of India, cordial relations with foreign nations, public order, or preventing incitement to an offence,” according to the same clause.

Conclusion

The government needs to keep in mind that the “right to internet” is a fundamental right and it should not be restricted in a whimsical manner.[10] In today’s era, the internet has become an indispensible part of education, trade, healthcare, etc., and blocking it can have a severe impact on the lives of common people. The Supreme Court stated during the hearing of the Jammu and Kashmir internet ban case that “the state’s indefinite internet shutdowns are an abuse of power and are not permitted by the Indian Constitution.” Indeed, matters like the security of the state or public order are constitutionally sanctioned restrictions on the “right to freedom of speech and expression” (Article 19 of the Indian Constitution), but those should also be balanced with the fundamental rights of the individual.

Author: Neha Raj, a Student of  Amity University Chhattisgarh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

1. The Code of Criminal Procedure, 1973.
2. Aryan A., “No clear public safety, emergency definition: Net ban being used for routine policing”, The Indian Express.
3. Singh R., “Explained: The frequency, reasons, and controversy over Internet suspensions by the government”, The Indian Express.
4. Bhatnagar I., “No centralised data on internet shutdowns, Centre tells Parliament”, Hindustan Times.
5. Mukul P., “Economic Impact: ‘India lost $2.8 bn in 2020 to Internet shutdowns; over double of 20 others”, The Indian Express.
6. Maqbool M., “I’m a journalist who lived through Kashmir’s traumatic internet blackout, which started one year ago. Here’s what it’s like to have your freedoms ripped away for 213 days”, Business Insider.
7. Cloteaux S., “Kashmir: Unabated attacks against journalists exacerbate media repression”, International Press Institute.
8. Malhotra P., “India’s New Telecom Bill Not Only Preserves 137-Year-Old Colonial Powers But Gives Govt Sweeping New Ones”, Article 14.
9. Rajalakshmi T., “New Telecom Bill fails to address internet shutdown, surveillance issues”, Frontline.
10. Dutta P., “Internet access a fundamental right, Supreme Court makes it official: Article 19 explained”, India Today.

[1] The Code of Criminal Procedure 1973, s 144.

[2] Aashish Aryan, “No clear public safety, emergency definition: Net ban being used for routine policing”, The Indian Express <“https://indianexpress.com/article/technology/no-clear-public-safety-emergency-definition-net-ban-being-used-for-routine-policing-7651616/”> accessed 24 November 2022.

[3] Rishika Singh, “Explained: The frequency, reasons, and controversy over Internet suspensions by the government”, The Indian Express <“https://indianexpress.com/article/explained/explained-the-frequency-reasons-and-controversy-over-internet-suspensions-by-the-government-8005450/”> accessed 24 November 2022.

[4] Isha Bhatnagar, “No centralised data on internet shutdowns, Centre tells Parliament”, Hindustan Times <“https://www.hindustantimes.com/india-news/no-centralised-data-on-internet-shutdowns-centre-tells-parliament-101659584773150.html”> accessed 24 November 2022.

[5] Pranav Mukul, “Economic Impact: ‘India lost $2.8 bn in 2020 to Internet shutdowns; over double of 20 others”, The Indian Express <“https://indianexpress.com/article/business/economic-impact-india-lost-2-8-bn-in-2020-to-internet-shutdowns-over-double-of-20-others-7134340/”> accessed 24 November 2022.

[6] Majid Maqbool, “I’m a journalist who lived through Kashmir’s traumatic internet blackout, which started one year ago. Here’s what it’s like to have your freedoms ripped away for 213 days”, Business Insider <“https://www.businessinsider.com/india-kashmir-internet-blackout-anniversary-i-lived-through-it-2020-8?IR=T”> accessed 24 November 2022.

[7] Salomé Cloteaux, “Kashmir: Unabated attacks against journalists exacerbate media repression”, International Press Institute <“https://ipi.media/kashmir-unabated-attacks-against-journalists-exacerbate-media-repression/”> accessed 24 November 2022.

[8] Preeksha Malhotra, “India’s New Telecom Bill Not Only Preserves 137-Year-Old Colonial Powers But Gives Govt Sweeping New Ones”, Article 14 <“https://article-14.com/post/india-s-new-telecom-bill-not-only-preserves-137-year-old-colonial-powers-but-gives-govt-sweeping-new-ones-6376ed1755796”> accessed 24 November 2022.

[9] T.K. Rajalakshmi, “New Telecom Bill fails to address internet shutdown, surveillance issues”, Frontline <“https://frontline.thehindu.com/the-nation/new-telecom-bill-fails-to-address-internet-shutdown-surveillance-issues/article66044103.ece”> accessed 25 November 2022.

[10] Prabhash Dutta, “Internet access a fundamental right, Supreme Court makes it official: Article 19 explained”, India Today, <“https://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10”> accessed 25 November 2022.