We call for review and reform of the legal and regulatory framework governing internet shutdowns in India

To:

Shri Ashwini Vaishnaw

Minister for Railways, Communications, Electronics and Information Technology

Shri K. Rajaraman,

Chairman DCC & Secretary(T)

Department of Telecommunications

Ministry of Communications

CC:

The Ministry of Electronics and Information Technology

The Chairperson & Members of the Parliamentary Standing Committee on Information Technology

Subject: Review and reform of the legal and regulatory framework governing internet shutdowns in India.

We, the undersigned organizations, and members of the #KeepItOn coalition – a global network of over 300 organizations from 105 countries – write to you to urge you to review the legal and regulatory framework on internet shutdowns in India. Unfettered access for all to an open, secure, and reliable internet is vital to the protection of fundamental rights in India, and to ensure that the livelihoods of increasing millions of people in India dependent on digital services and a connected economy are not disrupted.

According to Access Now and the #KeepItOn coalition’s new report, India imposed 84 internet shutdowns in 2022 – the highest number globally for the fifth year in a row. The world’s largest democracy has been responsible for approximately 58% of the total number of shutdowns documented since 2016. Each time access to the internet is hampered, so is people’s ability to communicate with loved ones, earn a livelihood, exchange information, and obtain education, healthcare, and other vital public services.

As the UN High Commissioner for Human Rights (OHCHR) noted: “[S]witching off the internet causes incalculable damage, both in material and human rights terms” while “the costs to jobs, education, health and political participation virtually always exceed any hoped for benefit.” Further, the OHCHR highlighted that “[t]he dramatic real-life effects of shutdowns on the lives and human rights of millions of people are vastly underappreciated and deserve much greater attention from States, international organizations, businesses and civil society.”

According to one study, India suffered a loss of approximately 184.3 million USD on account of shutdowns in 2022, impacting 12,07,43,890 internet users, and small as well as large businesses across sectors. In 2021, the loss amounted to nearly $583 million USD. A 2018 report noted that a shutdown over 10 days in a metropolitan area cost the state approximately 0.8% of the annual state GDP. And a Brookings study put economic losses in India due to shutdowns in 2016 at 968 million USD. In addition to hurting the economy at large, shutdowns negatively affect people’s livelihoods and directly contribute to loss of employment. It must also be noted that any calculation of economic loss is not likely to fully capture the impact on informal economies, the disproportionate impact on women, and the long-term effects of marketplace uncertainty stemming from unreliable internet access for businesses, investors, and consumers.

The costs, both human and economic, of internet shutdowns are well documented. However, the benefits remain hypothetical, and there is no evidence to support claims that internet shutdowns help maintain public order. In fact, they may worsen such situations.

The Indian Supreme Court has repeatedly sought accountability from the government on the procedure followed to impose shutdowns. In 2020, the Supreme Court clearly mandated that “suspension of telecom services, be it the [i]nternet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’.” It also required adherence with the proportionality standard under the Indian Constitution, and that shutdown orders be made public – requirements that authorities have consistently failed to comply with. In the backdrop of various high courts considering challenges against shutdowns in different contexts, and at least one high court lifting an ongoing shutdown, the Supreme Court has once again sought answers from the government.

Further, in December 2021, the Parliamentary Standing Committee on Communications and IT’s report recognised the internet as a “lifeline”, found that the current legal framework lacked clarity and safeguards, and that the process has limited consultation and oversight. The report made almost a dozen recommendations to the government to increase accountability, and create safeguards against misuse of powers. However, the government has not acted on any of the findings and recommendations. In February 2023, in its Action Taken Report, the committee expressed disappointment at the lack of concrete action taken by the government in this regard. The committee’s recommendations include a review of the legal regime for suspension of telecom services, and creation of a database of shutdown orders.

The spate of internet disruptions in India, and inherent arbitrariness in the laws permitting them, have a demonstrably adverse impact on people’s fundamental and human rights as well as the economy. Persistent observations and demands in this regard by Indian courts and parliamentarians, alongside a wide range of stakeholders, point to a compelling need for review and reform.

We submit the following urgent asks:

• Conduct a thorough, transparent review of the current legal and regulatory framework, including the Indian Telegraph Act, Temporary suspension of Telecom Services (Public Emergency or Public Safety) Rules, and the Criminal Procedure Code, as well as pending policy proposals – such as the Draft Indian Telecommunication Bill, 2022 – relating to the suspension of telecom services, including by inviting and incorporating feedback from all stakeholders, such as civil society, telecom and internet service providers, media, and the public at large;

• As a starting point, implement the rights-respecting recommendations of the Parliamentary Standing Committee on Communications and IT pertaining to building meaningful safeguards, maintaining an official database on internet shutdowns, creating awareness among authorities about the Supreme Court’s judgment in Anuradha Bhasin v. UOI and ensuring adherence with proportionality, make all the information that is sought by the committee available in the public domain;

• Ensure compliance with the directions of the Supreme Court, and make all shutdown orders public, including internet shutdowns ordered in previous years;

• Commit to revamping the legal and regulatory framework to protect and strengthen connectivity and people’s fundamental rights; and

• Refrain from arbitrarily imposing shutdowns or otherwise hampering access to the internet.

Internet shutdowns amplify the existing digital divide in India. Any disruption in connectivity is misaligned with the country’s Digital India vision and the Indian Government’s stated desire to demonstrate its democratic tradition and global leadership as it holds the G20 presidency this year. We urge the government and the parliament to act on the recommendations in this letter, take concrete action and initiate inclusive processes to review and reform the current regime, and fundamental approach, to internet shutdowns in India.

Signatories:

Access Now

ARTICLE 19

Article 21 Trust

Association for Progressive Communications (APC)

Centre for Law and Democracy

CIVICUS: World Alliance for Citizen Participation

Digital Empowerment Foundation

Digital Rights Watch

Equality Labs

Fight for the Future

Freedom House

Global Witness

India Civil Watch International

Internet Freedom Foundation

Point of View

Ranking Digital Rights

Reporters Without Borders (RSF)

SFLC.in

Swathanthra Malayalam Computing(SMC), India

Telangana Gig and Platform Workers Union (TGPWU)

The Bachchao Project