Tl;dr
On 09 February 2021, we wrote to the Rajasthan Government expressing concerns about state government officials imposing internet shutdowns without following the procedure prescribed under the Telecom Suspension Rules and the Supreme Court judgement in Anuradha Bhasin v. Union of India. Our representation was in the backdrop of the Rajasthan Government authorizing Divisional Commissioners to order internet shutdowns which is impermissible under existing law. In our representation, we have urged the Rajasthan Government to ensure that internet shutdowns are only ordered by properly authorised officials and are periodically reviewed by the State Level Review Committee. In addition to this, internet shutdown orders must be proactively published on official government websites and also through print and electronic media.
Background
With 72 documented internet shutdowns since 2012, Rajasthan has witnessed the second-highest number of internet shutdowns in India after Jammu & Kashmir. Internet shutdowns cause severe hardship to ordinary citizens. This is especially true during the COVID-19 pandemic, which has left people heavily dependent on the internet to access online education, telemedicine, work from home facilities and virtual court hearings. In addition to its impact on the general population, internet shutdowns also significantly damage the economy. For instance, recent estimates suggest that the Indian economy suffered USD $ 2.8 billion losses in 2020 due to internet shutdowns.
To the best of our knowledge, the most recent internet shutdown in Rajasthan was imposed on 02.11.2020 when the State Government suspended internet services in Kotputli, Patwa, Shahpura, Viratnagar, Jamwa Ramgarh, Madhorajpura, Dudu, and Mozamabad for 24 hours in response to the Gurjar reservation protests. Before this, the State Government had suspended internet services in several districts of Rajasthan on 17.10.2020 and 30.10.2020, also in response to the Gurjar reservation agitation. While such restrictions may be well-intentioned and aimed at preventing loss of human life and property, they may prove to be counterproductive because empirical studies suggest that internet shutdowns incentivize those forms of violent protests which require less communication and coordination than peaceful demonstrations.
We had previously obtained copies of at least 22 internet shutdown orders issued in Rajasthan from 2017 to 2019 through the Right to Information Act, 2005. An analysis of these orders reveals that Divisional Commissioners issued all the orders under Rule 2(1) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (Telecom Suspension Rules). These orders state that the power to impose internet shutdowns was delegated by the Home Secretary, the actual authority mentioned in Rule 2(1), to Divisional Commissioners through a letter issued on 02.09.2017 bearing reference no. F 35(1) Home-9/2006.
(IL)Legality - Non-Compliance with Telecom Suspension Rules
As mentioned above, the problem in Rajasthan is the issuance of internet shutdown orders by Divisional Commissioners who are not empowered under the Telecom Suspension Rules to exercise this power. Telecom Suspension Rules only permit the State Home Secretary to issue such orders. While the State Home Secretary can delegate the power, the delegate must not be below the level of a Joint Secretary. Moreover, any orders issued by the delegate must be confirmed by the Home Secretary within 24 hours. However, the orders supplied by the Rajasthan Government in response to RTI requests do not contain any orders issued by the Home Secretary, which approve the orders issued by Divisional Commissioners.
This practice of delegating the power to impose internet shutdowns to Divisional Commissioners was also discouraged by the Department of Telecommunications, Government of India (DoT) in 2018. In its letter to the Rajasthan Government, DoT had noted that frequent disruptions were being ordered by Divisional Commissioners in Rajasthan and urged the state government to reconsider its stance and ensure strict compliance with the law.
Another problem in Rajasthan is that internet shutdown orders are often not reviewed by the Review Committee established under Rule 2(5) of the Telecom Suspension Rules. The Review Committee is expected to serve as a procedural safeguard that ensures the extraordinary power to suspend internet services for the entire population of a region is exercised in a non-arbitrary and proportionate manner. As per RTI responses received by civil society groups, the Review Committee constituted for the State of Rajasthan has failed to perform this role in many cases. Between July 2017 and May 2018, the State Government ordered around 40 internet shutdowns, but the Review Committee reviewed these restrictions only in 11 cases.
(IL)Legality - Non-Compliance with Anuradha Bhasin
After the judgement of the Supreme Court in Anuradha Bhasin v. Union of India, additional procedural safeguards have also been read into the Telecom Suspension Rules. These safeguards require proactive publication of all internet shutdown orders and periodic review of internet restrictions every seven working days by the Review Committee.
After the judgement in Anuradha Bhasin v. Union of India being delivered on 10.01.2020, there have been at least four internet shutdowns in Rajasthan, reported by the media. However, to the best of our knowledge, the orders issued under the Telecom Suspension Rules to authorize these recent internet shutdowns have not been published on official government websites or made available through print and electronic media.
Recommendations
In view of the non-compliance with the law by the Government of Rajasthan in issuing internet shutdown orders, we have requested the Government to -
- Revoke letter no. F 35(1) Home-9/2006 dated 02.09.2017, which authorizes Divisional Commissioners in Rajasthan to order internet shutdowns.
- Issue an advisory clarifying that the powers available under Rule 2(1) of the Telecom Suspension Rules cannot be delegated by the Home Secretary to government officials below the rank of Joint Secretary, and the Home Secretary must confirm any orders issued by the delegate within 24 hours.
- Direct the State Level Review Committee established under Rule 2(5) of the Telecom Suspension Rules to review all internet shutdown orders within five working days of an order being issued.
- Publish all internet shutdown orders issued after the judgement of the Supreme in Anuradha Bhasin v. Union of India was delivered on 10.01.2020. This requirement applies to suspension orders issued by the Home Secretary and his/her delegates and review orders issued by the Review Committee under the Telecom Suspension Rules. These orders should be published on official government websites and also through print and electronic media.
- Commission an independent study to evaluate the effectiveness of internet shutdowns at preventing violence and examine less restrictive alternatives such as fact-checking or removing specific posts.
Important Documents
- Representation dated 09.02.2021 sent to the Rajasthan Government (link)
- Previous post titled ‘Rajasthan internet shutdown orders continue to be issued by unauthorized officials’ dated 09.12.2019 (link)
- Previous post titled ‘SC’s Kashmir communication shutdown judgement is just the beginning of a long uphill campaign’ dated 10.01.2020 (link)
- RTI responses from MP and Meghalaya show compliance failure with the Anuradha Bhasin Internet Shutdown decision dated 28.09.2020 (link)
- Previous post titled ‘RTI responses from Andhra Pradesh and Gujarat show compliance failure with the Anuradha Bhasin Internet Shutdown decision’ dated 10.11.2020 (link)