Draft Telecom bill doesn't limit govt powers to impose internet shutdowns at will

What does the draft bill say?

As per the draft bill proposed by the Department of Telecommunication (DoT), governments – both Central and state, or persons authorized by them may issue orders for the purpose of interception or suspension of telecommunication services. Such orders may be passed in the interest of protecting the sovereignty, integrity, and security of the nation, in the interest of friendly relations with foreign states, or for preventing the incitement of an offence and for safeguarding public order, the provision in the draft bill says.

"What the bill does is it regurgitates section 5(2) of the Indian Telegraph Act of 1885 that was passed by the British colonial government," says Tanmay Singh from the Internet Freedom Foundation.

Notably, the bill that is being brought to catch up with the technological advances, at the outset defines “telecommunication” to include internet services and over-the-top services which do not find any place in the 1885 law.

This gives the government the same powers of interception and suspension but over a wider gamut of services and without laying down clear limits to exercise such powers.

The current law

As the law on internet shutdowns stands today, Section 5(2) of the Telegraph Act confers power on the government to order a suspension of services. Under this provision, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) rules were introduced in 2017 to facilitate internet shutdowns by the government. While Section 5(2) is used as is in the draft bill, the 2017 rules are sought to be given continued effect under the draft bill unless superseded by a subsequent set of rules.

"By reproducing the text word to word from the 1885 Act without adding any procedural safeguards, what is being communicated is that in the eyes of the drafters of the bill there is no problem in the existing wording of the provision," Singh from Internet Freedom Foundation says.
This is an untenable view because India is widely known to be the capital of internet shutdowns, he adds.

As per a report published in April this year by a global digital rights advocacy organization, Access Now, India continued to be on top for blocking internet services and imposing internet shutdowns in 2021. This was the fourth year in a row that India featured as one of the countries with the maximum number of internet blocks.

The Supreme Court guidelines

This worrying position emerged even after the Supreme Court, in a crucial judgment in the Anuradha Bhasin versus Union of India case in January 2020 said that complete and broad suspension of telecommunication services, be it the internet or otherwise, must be considered by the state only if it is necessary and unavoidable. The apex court had also said that the authorities must first consider less intrusive alternative remedies in place of blocking telecom services.

Observing that freedom to practise profession or trade through the medium of internet enjoys constitutional protection, the top court also said that any restrictions imposed on telecom services, as such, must stand the test of proportionality.

"The draft telecom bill could have incorporated the guidelines laid down by the Supreme Court in the Anuradha Bhasin judgment and provided for safeguards but it does not do that," Jhalani highlights.

Without requisite safeguards at present under the existing laws, authorities invoke "public emergency" and "in the interest of public safety" as grounds for curtailing internet services. These terms remain open for interpretation in the absence of a specific definition, experts say.

"A good law is one that focuses on rights and gives the executive little room to misuse it. The law on internet shutdowns could have been drafted in a manner that proper safeguards were present,” says Jhalani.

Ubiquitous internet shutdowns

In recent times, certain areas in India have faced internet shutdowns for preventing cheating in competitive exams and sometimes even at a call for a peaceful demonstration or protest. The grounds invoked by the authorities are more often than not public safety or public emergency. A lawsuit before the Supreme Court highlighting this issue was filed earlier this year, which led to the top court calling on the government to show if there exists any standard operating procedure for exercising powers to block internet services. The case remains pending as of now.

Batting for the need for a standard operating procedure, Jhalani says there cannot be a one glove fits all solution to the issue but over-regulation of internet cannot be the answer. "It is about ensuring a balance between the right to free speech of the people and that someone's right does not cause any public safety issue," she adds.

Can procedural laws help?

This balance cannot be achieved by parroting the existing laws which we know are creating internet shutdown problems in India, Singh says. "It needs to be admitted that there is a problem with internet shutdowns in India and they happen much more than they should... so if the government in is the process of reforming the law, then it should add procedural laws."

The only possibility of seeing some change in the law, according to Singh, is if any subsequent rules are laid down which introduce procedural guidelines or safeguards. "It is possible that the lacunae may be addressed through subsequent amendment of (2017) rules but at present, there is no indication."

Echoing this point, Jhalani says, "Should the bill be passed in its existing form, then the only hope is that procedural safeguards find a place in subsequent rules that may be notified - otherwise, the bill provides no reform on the issue."