India is currently experiencing an exponential increase in the number of internet shutdowns; there have been 375 shutdowns since 2012, with 237 of those imposed in the last two years. These shutdowns are used to quell even anticipated unrest to restore peace; however, they restrict access to information, undermine freedom of speech, and impede economic activities, thus creating further unrest and hostility.
It is commonly believed that these shutdowns are arbitrarily sanctioned by Section 144, which gives the government the "power to issue order in urgent cases of nuisance of apprehended danger". However, there is in fact a distinction between an order under Section 144 and an order calling for the suspension of internet services. The two are passed under different provisions of the law and, hence, have unique procedural requirements that they need to adhere to. Such arguments ignore the multitude of legal safeguards against the government's arbitrary shutdown of internet services.
Moreover, a faulty understanding of which acts are being invoked leads to an incomplete understanding of the situation that may lead to one incorrectly analyzing the legality of the government's actions.
Section 144 of the Code of Criminal Procedure provides certain powers to a District Magistrate, Sub-Divisional Magistrate or an Executive Magistrate who has specifically been empowered by the State Government in situations of “apprehended danger”. The only power given to the State Government in this section is of extending, rescinding and altering the order; it does not confer the power to call for internet shutdowns.
Internet shutdowns are imposed through a combined reading of Section 5(2) of the Telegraph Act, 1885, read with the corresponding Rules; and Section 69A of the Information and Technology Act, 2000, read with Rule 9 of the corresponding Rules.
The framework under the Telegraph Act and the Rules confer power to sanction internet shutdowns to the Secretary to the Home Department of the Central or State Government, or, in urgent situations, the Joint Secretary, subject to the authorisation of the Union or State Home Secretary. Exercise of this power, however, is subject to being justified to the Review Committee by the next working day.
The Information Technology Act, on the other hand, gives such emergency powers to the Secretary of the Department of Information Technology, subject to the approval of the Review Committee within 48 hours. In Shreya Singhal v. Union of India, the Supreme Court upheld the constitutionality of the Information Technology Act due to the safeguards against arbitrary usage provided by the Review Committee.
Conversely, there are no such safeguards for the powers under Section 144, which prescribes the judiciary an inherent power to restrict the rights of citizens in certain situations. While the competence of the Deputy Commissioner of the Police to exercise this duty is questionable, it is more important to highlight the dangers of the misuse of ‘Section 144’ to justify internet shutdowns.
While there has indeed been a worrying rise in internet shutdowns, saying that they have been arbitrarily imposed using section 144 misunderstands the issue through improper terminology. The Telegraph Act and the Information Technology Act are the appropriate laws to regulate suspension of internet services and both have a number of safeguards protecting against arbitrary usage.
The belief that the internet shutdown is sanctioned by Section 144 has led to these safeguards being ignored entirely. The order dated 19 December 2019 for New Delhi, despite failing in explicitly stating so, was passed under the Telegraph Act and the corresponding rules since it has been sent to the Nodal officers by Deputy Commissioner of Police. Yet, this was not presented before the Review Committee as mandated by the legal framework allowing for such an order. This issue was highlighted by Shashi Tharoor in 2018, when he requested that the Parliamentary Committee set up a Review Committee to assess the validity of internet shutdowns; however, his efforts were in vain.
Further, as opposed to Section 144, which allows for such an order in situations of ‘apprehended danger’, the Telegraph Act and the Information Technology Act require an existing situation where such order is necessary or expedient; they cannot be imposed when there is only anticipated unrest.
This is a crucial distinction. Section 144 does not require an existing threat to public order. This is because the powers under Section 144 are judicial powers and allow for the exercise of such discretion. However, the authority under the Telegraph Act and the Information Technology Act require an ongoing and proven situation that must necessarily justify the drastic measure of suspension of internet services. This is a purely executive power and is, therefore, restricted by various safeguards.
Again, this improper terminology often leads to the government exercising the judicial discretion granted in Section 144 while exercising powers under the Telegraph Act or the Information Technology Act. The Delhi Police passed two prohibitory orders, dated 18 December 2019, under Section 144 of the Code of Criminal Procedure. However, the Secretary of Home Affairs under the Telegraph Act passed the order for suspension of internet services.
The use of internet shutdowns as a precautionary measure is a power that can solely be exercised by the judiciary or the Deputy Commissioner of Police, in case of Delhi, under Section 144. Further, any such order under the Telegraph Act must be brought before a Review Committee, which is another procedural anomaly.
While it is merely a question of language, the consequences are more significant than would be expected. There is a stricter standard to restrict internet services. However, this is mostly ignored and rarely criticised. Section 144 is, largely speaking, an absolute power. However, this is not true for the laws on internet shutdowns. To bring all these orders before a Review Committee, and to make the detailed decision of the committee on the viability of such public is important. This will promote a proportionate and reasonable solution in situations of unrest, rather than indiscriminately restricting access to content on the internet in entirety.
References:
Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Department of Telecommunications, Ministry of Communications. New Delhi. (27 October, 2009).
Prohibitory Order u/s. 144 Cr.PC. Office of the Dy. Commissioner of Police North-East District Delhi. (18 December, 2019).
Prohibitory Order u/s. 144 Cr.PC. Office of the Dy. Commissioner of Police East District Delhi. (18 December, 2019).
Shreya Singhal v. Union of India. Writ Petition (Criminal) No. 167 of 2012. Supreme Court of India.
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Department of Telecommunications, Ministry of Communications. New Delhi. (7 August, 2017).
The Code of Criminal Procedure, 1973. Act No. 2 of 1974. (25 January, 1974).
The Indian Telegraph Act, 1885. Act No. 13 of 1885. (1 October, 1885).
The Information Technology Act, 2000. Act No. 21 of 2000. (9 June, 2000).
Anonymous. (2019, 20 December). Mobile Internet Shutdowns in Lucknow, Ghaziabad, Mangalore Amid Anti-CAA Protests. Indian Express. Accessed on 26 December, 2019 from https://indianexpress.com/article/technology/tech-news-technology/anti-citizenship-act-protests-mobile-internet-shutdown-in-parts-of-delhi-confirm-airtel-and-vodafone-6174586/.
Gill, P. (2019, 23 December). Indian Government Shut Off the Internet Over a 100 Times in 2019 — and China is Lovin’ It. Business Insider. Accessed on 26 December, 2019 from https://www.businessinsider.in/tech/news/caa-internet-shutdowns-make-india-example-for-china/articleshow/72931761.cms.
Jalan, T. (2018, 10 December). Congress MP Tharoor Urges a Review of Internet Shutdown Rules in India. Medianama. Accessed on 26 December, 2019 from https://www.medianama.com/2018/12/223-shashi-tharoor-review-internet-shutdown-rules/.
Mehrotra, K. (2019, 20 December). First Time, Internet Voice, SMS Shut Down in Delhi. Indian Express. Accessed on 26 December, 2019 from https://indianexpress.com/article/cities/delhi/first-time-internet-voice-sms-shut-down-in-capital/.