In India, are internet shutdowns in accordance with law? Not always

In the shutdown capital of the world, the government uses it for everything from curbing protests to preventing cheating in exams.

WrittenBy:Diksha Munjal
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Last weekend, multiple districts in Rajasthan, including the whole of Jaipur, Bikaner and Dhausa, had no mobile internet access from dawn till dusk. All speeds of mobile internet, along with WhatsApp, Twitter, other social media platforms, and SMS services, were shut down from 6 am to 6 pm on October 23 and 24.

Why, you ask?

To stop potential cheating in an examination.

Mobile internet was shut for the general public in various districts including Jaipur, which alone has 66 lakh residents, as about 15 lakh candidates appeared for the Patwari, or land record keeper, examination in 23 districts of the state.

The shutdown was ordered by divisional commissioners of the respective districts. The justification was to prevent “paper leakage, fake rumours and untoward incidents” that may result in “disturbance” or an adverse “law and order situation”.

If this sounds familiar, it’s because this isn’t even the first time it’s happening in Rajasthan in the past month.

On September 27, mobile internet services were suspended across Rajasthan as over 16 lakh candidates appeared for the Rajasthan Eligibility Examination for Teachers. After Jammu and Kashmir, Rajasthan, with 76 recorded shutdowns since 2012, tops the country in ordering the most shutdowns, according to the internet shutdown tracker started by the Software Freedom Law Center, India.

India has the second largest population of mobile internet subscribers in the world. India also ranks first globally when it comes to cutting off the internet, thereby earning the notorious title of being the “internet shutdown capital” of the world. Last year, the mobile internet was shut down 127 times, while it’s been cut off 39 times this year so far.

Contrast this with two shutdowns in Pakistan last year, two in Sudan, one in Iran and none in China and the US.

According to a report by the UK-based privacy and security research firm Top 10 VPN, India accounted for 75 percent value loss from internet shutdowns across the world in 2020, losing an estimated $2.8 billion.

For instance, after the abrogation of Kashmir’s special status in August 2019, the new union territory saw the longest internet shutdown in the country, lasting 213 days, even in early 2020, only 2G internet services were stored, while the ban on 4G speed internet continued till February this year. During the citizenship law protests in December 2019, the internet was shut down 12 times in different states.

This also marked the beginning of a new trend for India: shutdowns imposed as a “precautionary” measure or in response to public protests. Once the farmer protests began in November 2020, the internet was switched off regularly to “control” the situation.

As recently as September, when farmers planned a sit-in protest and mahapanchayat in Haryana’s Karnal, the mobile internet was cut off for one and a half days in Karnal and four other districts to stop the “spread of misinformation and rumours” on social media. The shutdown was extended in Karnal for two more days as the farmers continued their protest.

So, given that internet shutdowns have become synonymous with protests and with India itself, how do they happen? Who issues the order for a shutdown? And how do we measure its impact?

What does the law say?

The first recorded internet shutdown in India took place in Jammu and Kashmir in 2012, when mobile internet services were suspended for a few hours during protests against a movie that allegedly hurt Islamic sentiments.

Until 2017, India did not have a codified law to order internet shutdowns. The power to do so was vested in district magistrates under Section 144 of the Code of Criminal Procedure.

In 2017, new rules to order internet shutdowns were introduced under the Indian Telegraph Act of 1885. These rules – the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) rules – stated that internet shutdowns can now only be ordered by the home secretary of the union or state governments. Shutdowns could be ordered where “necessary” or “unavoidable”, during a “public emergency” or in the “interest of public safety”.

On paper, the rules indicate that the process is now more difficult and also more transparent – both of which are good things.

On the ground, however, that isn’t the case. Non-compliance with the rules is all too common. District magistrates continue to pass internet shutdown orders, as they did before, under Section 144.

In Rajasthan’s shutdown of September, for instance, the order to do so in Ajmer district came from the district magistrate. During the citizenship law protests in December 2019, the order to cut off the internet in Delhi was issued by the deputy commissioner of police – who is neither a home secretary nor a district magistrate.

In March 2018, when the internet was shut down in West Bengal’s Paschim Bardhaman and Uttar Pradesh’s Meerut, the orders were issued by the respective district magistrates.

Additionally, the new rules under the Indian Telegraph Act indicate that orders to shut down the internet must necessarily detail the reasons to do so.

Unsurprisingly, that does not happen. Most orders scrutinised by Newslaundry merely used a collection of common keywords: “law and order situation”, fears of “spread of misinformation”, “peace and public order”. These phrases were used to describe protests, political instability, communal violence, and yes, even conducting examinations.

Tanmay Singh, litigation counsel at the Internet Freedom Foundation, a digital liberties organisation based in Delhi, told Newslaundry that switching off the internet to tackle misinformation is “counterproductive”, considering most fact-checking takes place on the internet itself.

While there is no known research that internet shutdowns actually help maintain law and order, detailed research by Jan Rydzak, a former associate director at Stanford University's digital policy incubator, suggests that internet shutdowns might actually lead to an increase in instances of violence at a protest. It says that without social media such as Facebook and WhatsApp, where peaceful protest can be organised and coordinated, in the absence of the internet, people may resort to a spontaneous and unplanned response: violence.

On internet shutdowns in India, Singh said any conversation after January 2020 must begin with the Supreme Court judgement in the case of Anuradha Bhasin. Bhasin, the editor of Kashmir Times, had approached the apex court in 2019 regarding the curbing of media freedom owing to the prolonged shutdown of mobile and internet services in Jammu and Kashmir.

According to Singh, the judgement in Bhasin’s case explicitly recognised two things: that the freedom to access information is a fundamental right under Article 19(1)(a) of the constitution; and that the freedom to conduct your trade, profession or business over the internet is also a fundamental right under Article 19(1)(g).

“So, every time the internet is suspended, it is quite obvious that it is a violation of these rights,” Singh said. And these rights cannot be curtailed “just like that”.

Singh explained that these rights, which are enshrined in the constitution, can only be curtailed in the interest of the “sovereignty and security of the state, integrity of the nation, friendly relations with foreign states, or public order or for preventing incitement to the commission of an offence.”

For instance, Singh said, when the internet was shut down in districts of Haryana last month ahead of the farmers’ mahapanchayat, the order cited the protest as a “threat to public order”.

“But that is not enough,” he said. “How exactly a protest is a threat to public order needs to be reasoned out, because protests are a democratic and constitutional right to every citizen of India. Just the mere holding of a protest does not by itself constitute a threat to public order.”

Yet administrations do not go beyond the mere citation of a protest while issuing these orders. Singh pointed at the internet suspension in Rajasthan ostensibly to prevent cheating in an examination. “It shows that fundamental rights are taken very lightly to basically further administrative convenience,” he said.

Additionally, most orders for shutdown apply to mobile internet, not broadband. As a result, Singh pointed out, these shutdowns disproportionately affect those from lower income groups.

Justifications for shutdowns

Dinesh Kumar Yadav, the divisional commissioner of Jaipur who issued the shutdown order, defended the internet shutdown in Rajasthan using a combination of the typical keywords applied by administrations to justify shutdowns.

“Kids are coming in lakhs, not small numbers, to appear for these examinations,” he said. “So, wherever we felt there is a probability of a law and order situation being created, based on the volume or type of crowd, we decided to place the restrictions.”

Yadav described it as a situation that could “potentially” hamper public safety. “There have been instances in the past where papers have been leaked and students have started agitations,” he said, adding that if a city like Jaipur anticipates large crowds, “there is a possibility of a law and order situation being created”.

Yet in 2018, the Vasundhara Raje government had submitted an affidavit to the Rajasthan High Court stating that the internet would no longer be suspended in the state during examinations. But Yadav said that in the case of a “grave law and order situation”, the high court permitted administrations to take necessary steps.

“If 15 lakh students are coming on one day, a grave law and order situation can be created if they come to know on the internet that papers have been leaked and all their preparation is in vain,” he said.

He added that the administration passes orders “on the demand of the police”. “If you want to know further,” he said, “you should ask them.”

BL Mehra, the divisional commissioner of Bikaner, used the same argument.

“Broadband works during this time, only mobile internet is shut so that those who spread rumours can’t use it,” he said, adding that the “whole world” knows that social media is used to spread rumours which might lead to a “law and order” situation.

But what about public inconvenience as a result of such shutdowns?

“The public faces no inconvenience,” Mehra said. “It, in fact, remains safe because of this.”

The Supreme Court’s judgement in Bhasin’s case had underlined that shutdown orders must be publicly available. But, more often than not, these orders are made available much later or not at all. Sometimes, Singh said, they’re uploaded onto “obscure” government websites so most members of the public wouldn’t even know where to find them.

Several digital freedom advocacy groups, including the Internet Freedom Foundation, told Newslaundry they filed RTI requests asking for copies of shutdown orders and asking if administrations had complied with the 2020 judgements. The groups seldom receive responses. One RTI response from local administration in Manipur indicated that the administration was not even aware that such a judgement exists.

Additionally, the new rules of 2017 mandated that shutdown orders must be sent to a review committee under the state or central government within 24 hours. The committee must then meet within five working days to deliberate the validity of the order.

There’s very little publicly available information about the constitution of such review committees. RTI requests about them have also hit dead ends. All this indicates non-compliance of the rules.

At the state level, the committee is supposed to have the chief secretary of the state as the chairman. Newslaundry asked the chief secretary of Rajasthan, Niranjan Arya, whether he’s a member of such a committee. He said he was not aware of the fact that he needed to be a member at all, and claimed the committee could include the home secretary instead.

Arya is incorrect. The rules explicitly state that apart from the chief secretary and legal secretary, the committee can comprise a secretary who is other than the home secretary.

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The rules also say that only in “unavoidable circumstances”, the passing of orders can be delegated to someone not lower than the rank of a joint secretary to the government of India. And even in this case, the official must be authorised by the centre or state home secretary.

Rajasthan’s orders in September and October were passed by divisional commissioners, who are generally above the rank of joint secretary. But were they authorised by the state’s home secretary? Newslaundry was unable to verify this.

It should be noted that the shutdown order in Haryana’s Karnal was passed by the state’s home ministry.

Public order or public loss?

So, what happens once an order is passed?

Telecom service providers, like Airtel or Vodafone, then have to shut down the internet on all mobile towers in the specified area.

Newslaundry spoke to a telecom industry expert who walked us through how this happens.

On the day the internet must be cut off, the company’s area head gets a phone call from a nodal officer or directly from the police or district administration. The area or circle head is told to suspend mobile internet services in a geographical area.

Around 15 or 20 people, on average, virtually access the networks and shut down the internet on specific cellphone towers. This can take anywhere between one or five hours, depending on the size of the area.

“The biggest impact is, of course, on the customers,” the expert said. “But there is also an impact on the telecom service providers in terms of huge revenue loss. Not only that, there is a significant operational burden on the companies.”

Since these shutdowns are often last minute, telecom service providers are often on the receiving end of customers’ frustration. “Customers start blaming the operators,” the expert said, adding that customer care centres get “flooded” with calls from users asking what’s going on. These calls make up around 30 to 40 percent of the total call volume at call centres on shutdown days.

The expert described internet shutdowns as a “blunt instrument” that should not be used “arbitrarily”. He added that telecom companies and bodies often write to the department of telecommunications asking that internet shutdowns are not ordered arbitrarily, since it causes both economic and operational loss to companies.

On the other end is the suffering of the general public, from disrupted business activities that are dependent on the internet to loss of internet access during medical emergencies, online education, and a host of other activities.

Journalists are among those impacted, since reporting from the ground in the absence of mobile services is very difficult.

Independent journalist Mandeep Punia was reporting from Karnal when the internet was cut off.

“Whatever footage we were shooting, we had to go all the way to a dhaba, 16 km away from the protest site, to upload the videos,” he explained. “I made four trips back and forth throughout the day to send ground reports.”

The dhaba had WiFi, so it was haunted by other freelance and digital media journalists trying to file their stories. Television journalists had their OB vans to telecast live footage while print journalists were not filing their stories from the spot, so it was the digital and freelance journalists who had the most trouble.

“We depend totally on digital means to do our work,” Punia said. “Internet shutdowns in that sense are disproportionate.” Emphasising the value of ground reports, he said, “If the picture from the ground does not go out, a narrative can be created that everything is fine.”

Far worse is the situation of journalists in Kashmir, especially after the abrogation of Article 370. Independent journalist Azaan Javaid, who is based in Srinagar, explained how he and fellow journalists were forced to depend on a government-run media centre to access the internet.

“The whole exercise of going to stand in line outside the media centre in the morning to upload your story,” he said, “fighting with other journalists to get early access to a computer or internet, was a humiliating experience for all journalists here.”

He also called it an exercise aimed at “disenfranchising journalists” since journalists had to rely on the administration to do their work.

Singh from the Internet Freedom Foundation said one reason why internet shutdowns have become so “easy to order” is because “we have allowed them to be”.

Noting that access to information is, as recognised by the Bhasin judgement, a fundamental right, he said, “Of course the responsibility to protect the fundamental rights of citizens falls on the state, but if it's the state that is violating these rights, then it has to be the citizens who have to take notice.”

The other issue is this: When the internet is suspended from 6 am to 6 pm, there’s a kind of general relief once services are resumed. “People say, ‘It was 12 hours, at least it’s back on.’ But this fosters a culture where the state sort of realises that it can get away with a lot of things with impunity.”

Also see
article imagePanopticon of fear and rumours: Inside Kashmir’s media centre during lockdown
article imageExplained: Why internet shutdowns are a violation of human rights


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