Congress MP Dr Shashi Tharoor has written to the chairman of the Parliamentary Committee on Subordinate Legislation urging a review of India’s internet shutdowns rules, officially called the Temporary Suspension of Telecom Services (Public Emergency or Public Safety Rules), 2017.

Addressing the chairman of the committee, BJP MP Dilip Kumar Gandhi, Tharoor talks about the negative consequences of the internet shutdown rules. He writes that there have 121 internet shutdowns in 2018, the highest globally. According to him, internet bans are problematic because:

  • They burden the economy and specifically, small business which rely on online transactions. He writes that internet bans in 2018 have led to a loss of Rs 22,154 crore in the country.
  • They curb free speech of a “large section of the population for a prolonged period”.
  • They are counterproductive to controlling tense situations; when people are prevented from contacting one another, “the hostile environment is exacerbated”.

Why Tharoor called for a review

  • No consultations: The internet shutdown rules were passed without any pre-legislative consultation, this “casts a doubt” on whether the concerns of the stakeholders have been considered
  • Vests issue orders with executive: The rules empower the central and state executives to issue internet bans, as opposed to the Indian Penal Code which rests this power in quasi-judicial officers, the district magistrate of sub-district magistrate. “The lack of procedural safeguards will enable the executive to use these powers in a high-handed manner,” he writes.
  • According to him, the absence of an appeals process and lack of transparency has led to “arbitrary and disproportionate shutdowns” in the country.
  • Too broad a definition, restrains fundamental right to free speech: Tharoor brought attention to the SC decision in Shreya Singhal, in which Section 66A of the IT Act was struck down for its harmful impact on online free speech. He asserts that the internet shutdowns rules restrain the fundamental right to free speech, given that the term ‘telecom’ is too broadly defined in the rules.
    • This vagueness, he says, “…extends to telephonic services that do not use the internet, including voice calls, SMSes and so on. An open-ended definition such as this paves way for an easy misuse of powers in restraining a fundamental right, namely, the right to free speech.”
  • Issues with the Review Committee: Tharoor also raises issues with the composition of the Review Committee under Rule 2(2). According to this rule, the reasons for issuing an internet ban will be submitted to a review committee, along with a copy of the order by the next working day. The committee does not have members who might take a contrary stand to the government. According to Tharoor, it should include a retired judge or an eminent jurist, to provide legal expertise and independent views, while determining the legality of the shut down order.
    • Additionally, the rules provide that the committee meet within 5 days of the shutdown being ordered. This period makes the review committee itself redundant, as the shutdown may be lifted by the time the committee meets. He argues that the committee should convene within 24 hours of a shutdown being ordered.
  • No remedy for illegal shutdowns: Because affected parties cannot question a shutdown, they go unreported, although the rules require that their reasons(s) be recorded.
  • No safeguard against a shutdown: The rules do not provide for a prior hearing before a shutdown, and does not require that a notification be issued regarding the shutdown. “It abruptly interferes with people’s schedules,” he says. The absence of a sunset clause, to mandate that an automatic end of a shutdown, is also problematic, according to him.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
Rule 2(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.

Composition of the Review Committee at Central and State levels —
(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.

Read the copy of Tharoor’s letter here and the internet shutdown rules here.

How many shutdowns in 2018?

There have been 130 reported internet shutdowns in the country in 2018, according to SFLC’s internet shutdowns tracker. This is much higher than the 79 shutdowns in 2017, and 31 shutdowns in 2016. In September, India crossed 100 shutdowns in just this year. Note that the internet shutdown rules were passed in August 2017.

Our internet shutdowns coverage.