TMT LawsIndia’s Repeated Internet Shutdowns- An Example of Excessive Delegation and its Repercussions

INTRODUCTION

An Internet shutdown is a deliberate disruption of internet services or electronic communication in a particular area or targeted for a specific population by the government to control the flow of communication. Internet Shutdowns which were initially used during cases of national emergencies are nowadays commonly used by the government as a tactic to keep the opposing views of people suppressed and to subdue their right to speech and expression.

These practices have become usual for the administration, owing to the arbitrary use of power exercised by the government which has led to adverse outcomes affecting the lives, professions, and mental health of people. There is no denying that desperate times call for desperate measures. But there is no defining as to what are these extreme situations or the scope of power of the government in such circumstances.

Instead, decisions are left to the discretion of the executive, removing the legislative from the picture altogether. The recently formulated Draft Indian Telecommunication Bill poses problematic provisions, if passed would prove to be more challenging than the existing issues prevalent in the system.

From shutting down the internet for reasons ranging from cheating in examination halls to combating terrorism and riots, there is no comprehensive legislative framework that governs the country. With the world getting digitalized, these regular internet shutdowns can cause hindrance in the daily life of people. These internet shutdowns create trust deficit between the government and the citizens, it helps deepen the divides between and within the countries.

The impact of the suspension of the internet is not just limited to a human rights violation as it seems to be, it is far more gruesome. Its impact is felt in the sectors of healthcare, education, and elections to name a few. As per a report by Top10 VPN, India has suffered a whopping loss of $174.6 million in the year 2022 alone owing to its repeated internet shutdowns. This affects the lives and livelihood of people.

EXISTING LEGALITY OF INTERNET LAWS IN INDIA:

India, now more than ever, is in dire need to formulate regulatory guidelines to control the systemic internet shutdowns in the country. The necessity of systematic guidelines was realized post the internet shutdowns imposed in the State of Jammu and Kashmir after the abrogation of Article 370 of the Indian Constitution. In the landmark case of Anuradha Bhasin v. Union of India [(2020) 3 SCC 637] a writ petition was filed in the Supreme Court that challenged the restrictions put forth by the government in the State of Kashmir on grounds of violation of Article 19 and 32 of the Indian Constitution.

The Supreme Court in this case, did not lift the restrictions, instead directed the government to review the restrictions ordered with the help of the tests laid down in the judgement. The Supreme Court ruled that the right to the internet was included in the freedom of Speech and Expression guaranteed in the Indian Constitution. It has to be protected. It could only be restricted when there is a risk against citizens or in the name of national security. Another important observation made by the Supreme Court was that undefined restriction of Internet services would be illegal, and orders regarding Internet shut down must fulfil the tests of necessity and proportionality.

India has minimal provisions regarding suspensions of the internet. The powers regarding the suspension of the internet have been given under certain statutory laws but they lack the details required to carry out the nitty-gritty of the Internet shutdown. The Indian Telegraph Act, 1885 was amended recently to inculcate internet suspension laws. There is also a fading mention of certain rules relating to the shutdown in the Information and Technology Act,2000 (hereinafter referred to as “IT Act”) and the Criminal Procedural Code (hereinafter referred to as “CrPC Code”).

According to Section 7 of the Indian Telegraphic Act was recently amended to add the term ‘temporary suspension’ of telecom services (public emergency and public safety) rules. As per the provisions laid out, only the home secretary of the union or the state can issue an order of suspension of the internet. It also has to be reviewed by a committee within 5 days. Such an order shall not be in operation for more than 15 days.

Powers are also provided under Section 144 of the Code to an officer of the rank of the joint secretary or above, authorized by the union or state home secretary can order for the suspension of the internet in cases of unavoidable circumstances. Similarly, Section 69(A) of the IT Act gives power to the government to block websites and not the Internet as a whole.

INITIATION OF “THE DREAFT INDIAN TELECOMMUNICATION BILL”:

The laws prescribed here seem perfect on paper but pose serious concerns when implemented. The rules lack clarity on concepts of ‘public emergency’, ‘unavoidable circumstances’, and ‘temporary suspension’. These regulations come across as hazy and can be easily interpreted according to one’s convenience. This gives rise to ambiguity and confusion among people and is against the spirit of Indian Jurisprudence.

The presence of these existing provisions has no effect on the rampant suspension of the internet. This proves that these provisions are insufficient to control the government from arbitrarily using its power to suspend the internet regularly. Constant efforts are being made to have an extensive legislative framework to control these ill practices. The Draft Indian Telecommunications Bill, 2022 (hereinafter referred to as “Bill”) was recently introduced by the Department of Telecommunications under the Ministry of Communications which aims to singlehandedly regulate internet-based OTT Telecom Services.

The Bill plans to integrate the legislation on the provision, development, and growth of telecommunication services, networks, and infrastructure. The Bill is thorough on matters relating to surveillance, licensing, and matters of internet suspension.

The Bill is a genuine endeavor by the government to advance the present regulations and try to overcome the challenges posed by it. This was much needed considering the three main legislatures that govern this sector are outdated as they were enacted 70 years back.

The present Bill attempts to broaden the existing definition of ‘telecommunication services’ by including OTT telecommunication services like WhatsApp, Telegram, Messenger, Google Meet, etc.  along with the Telecom Service providers. This change has made the OTT telecommunication services liable for the same licensing conditions as the Telecom Service Providers.

The Bill also tries to reduce spam calls and fraud by providing the identification of the person available to the user receiving such communications. This means that unlike the situation now, when only the phone number of the person calling is displayed, henceforth, the name of the person will also be displayed not just for voice calls but also in OTT communication services. The Bill thus focuses on consumer protection measures and is far more advanced than the existing provisions.

LIMITATION OF CLAUSE 24 OF THE BILL – AN EXCESSIVE DELEGATION OF POWER:

While the provisions in the draft complementing the present advancements of the digital times are valuable, one can’t help but ignore certain provisions which add to the current discrepancies in the system. One such provision is enumerated in Clause 24 of the Bill. This provides with the Central and State Government and any other officer to pass an order to deflect, detain internet connections or completely suspend the telecommunication service at their discretion if they deem there is a situation of a question of public safety or national security.

Such wide powers left at the whims and fancies of the government are against the general constitutional structure of India. The present structure entails the presence of three main organs to govern the smooth functioning of the country i.e., the Legislature, the Executive, and the Judiciary. Having powers and rules defined and outlined for each organ they don’t operate in isolation, but rather in the interdependence of each other.

The Legislature is the law-making body that enacts laws. The power to legislate has been given to the parliament. However, they do have some limitations from the Executive and the Judiciary. The executive is responsible to execute the laws enacted by the Legislature and in turn, is accountable to the latter and the Judiciary for the same. The executive is also enshrined with the powers to make verdicts, and ordinances, refuse laws made by the Legislature, and command the military.

Finally, the Judiciary ensures the Legislature and Executive perform their duties as per the spirit of our constitution and don’t misuse the powers enshrined upon them by the Constitution. The functioning of the Judiciary is independent of the Executive. The Legislature however has the power to impeach the judges of the Supreme Court, making neither of the organs absolute. They help maintain checks and powers in the system and ensure that no one exercises powers outside what is assigned to them.

Thus, all truly different organs with different roles to play interdependence of each other to facilitate the smooth functioning of the system. However, in recent times, several issues of the modern government require speedy attention. The fundamental altercations and amendments in the system are inevitable in modern times. The country is gradually transforming from a ‘police state’ to a ‘welfare state.’ With parliament having its hands full to keep up with the changing trends of the societies it is getting excruciatingly difficult to manage every aspect of its powers and functions.

Thus, a recent development has been introduced in India to delegate certain Ancillary Powers to an inferior body with the responsibility to perform those duties on behalf of the inferior, this is called delegated legislation. It refers to the exercise of Legislative Powers by the Executive on behalf of the Legislature. Here the basic rules of conduct have to be framed by the legislature itself. The subsidiary laws can be left to the executive to frame.

Coming back to Clause 24 of the Bill which empowers the Central and State government to take calls regarding matters of suspension of Internet and Telecommunication services is outside the basic powers given to the executive. It is considered an abuse of power as Government can impose such restrictions on the people without any exterior control which goes against the Basic Principles of our Constitution. On top of that these powers are faintly explained and don’t cover the scope of the powers or other details required to understand the extent of powers enshrined on the Executive.

The Bill doesn’t underline what comes the purview of public safety, or public emergency and leaves it open for interpretation inviting confusion, chaos, and ambiguity in the system.

The result of such laws is the Arbitrary use of such powers by imposing restrictions by the Executive on matters which seem far from a situation of public security or emergency. The Bill also fails to follow the guidelines laid down in the case of People’s Union for Civil Liberties v. Union of India [AIR (1997) SC 568] which made some assertions regarding the interpretation of the expressions ‘public safety’ and ‘public emergency’ and what do these terms constitute with regards to the Indian Constitution.

AMLEGALS REMARKS

In recent times India has been bearing the brunt of the regular and unpoliced internet suspensions by the government. From 2016 to 2022, India has had internet shutdowns in the states of Jammu and Kashmir, Haryana, Rajasthan, and Uttar Pradesh.

If one dives into the reasons for such suspensions, the present Government is misusing the weak interpretation of these terms. Some argue that such stringent measures is well deserved in order to control certain situations but it would be unfair to resort to such extreme measures for issues that may not necessarily account for a situation of public emergency and security.

These extreme measures have now become a common practice for the government, which was once unprecedented, must not be entertained. To curb such abuse of power a stringent and extensive law must be put into action. Powers must be provided with reasonable restrictions. The basic nature and structure of the three basic organs of the constitution must not be tampered with. The ideology, “Power corrupts Power and Power checks Power” by the French philosopher Montesquieu holds a lot of significance in the present scenario. If there is unlimited power provided to a certain part of the system it tends to affect the balance and corrupts it. A necessary check is hence, needed to keep the system in check.

– Team AMLEGALS assisted by Ms. Aayushi Udeshi (Intern)

For any query or feedback, please feel free to get in touch with tanmay.banthia@amlegals.com or himanshi.patwa@amlegals.com