The internet blackout in parts of Tamil Nadu following the death of 13 people in police firing in Thoothukudi in May is a perfect illustration of the inadequacy of India’s Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, to prevent online censorship. Framed under the archaic Telegraph Act (1885), these rules give Union and state governments sweeping powers to suspend internet services, without seeking accountability and transparency.

After the May 22 police firing and deaths, in a two-page order marked “Top Secret”, the state government compelled telecom service providers to cut off the internet for five days in Thoothukudi and adjoining districts to prevent what it termed “proactive messages” and “rumours with half-truth” from spreading through social media. But the timing, design and execution of the order indicate that rather than addressing a public emergency, it was a concerted attempt to prevent the free flow of information.

The protests that led to the police firing had been going on since February; local residents were protesting against the expansion of a Sterlite copper smelter in the area. The agitation had largely escaped the media spotlight so far, but the deaths due to police firing directed the attention of the public towards it. That is when the government issued its order to suspend the internet. The extent of the suspension, however, was problematic. Internet was also suspended in the neighbouring districts of Tirunelveli and Kanyakumari, which is puzzling as these areas had no connection to the agitations in Thoothukudi. It is also unclear what the government sought to achieve by suspending the internet when Section 144 of the Code of Criminal Procedure had already been imposed in the area. This bans the assembly of more than five people in an area, ostensibly to maintain law and order.

Tell-tale statistics

Internet blackouts have their origins in authoritarian regimes. China (2009) and Egypt (2011) have used it as a repressive tool to quell instability. India has quickly caught on. It has now acquired the reputation of the country with the highest incidents of internet blackouts. During April 2017 and March 2018, 82 out of 97 total internet shutdowns in the Indian sub-continent were reported from India, according to the United Nations’ South Asia Press Freedom Report (2017-’18). The report also noticed that the maximum instances of shutdowns were triggered “following a killing” similar to the one in Thoothukudi.

A deeper analysis by Access Now, a global digital rights advocacy group, on shutdowns imposed by countries across the globe in 2016 and 2017, showed a strategic link between internet suspension and the effort by nations to curtail dissent. It found that the stated reasons to maintain public safety or to prevent false rumours, for instance, were often fig leafs to prevent protests or “quell political instability”.

Another online database created by digital advocacy group, which has catalogued nearly 180 shutdowns in India since January 2012, found that nearly half (92) of the shutdowns were deployed as a preventive measure “in anticipation of law and order breakdowns”. In other words, internet shutdowns are increasingly used as tool for pre-censorship.

Given this troubling experience, to justify internet shutdown orders, governments should be required to provide demonstrable proof and real danger of violence due to the internet, and not merely hypothesise compelling circumstances. The 2017 rules, unfortunately, fail to demand any such accountability. They merely specify the procedure and the designated authority of the Union or state governments who can authorise suspension of internet services. Except for a preamble asking states “to regulate the temporary suspension of telecom services due to public emergency or public safety”, the rules nowhere lay down the grounds or provide any guidance on circumstances that may warrant suspension of the internet. All that the competent authority is required to do is to proclaim a public emergency or threat to public safety to suspend internet access, anywhere, and for howsoever long.

Whither proportionality?

While there is a strong legal view that has questioned the powers to impose shutdowns in the first place, as a means to “achieve a temporary illusion of security”, the absence of any form of standard operating procedure or protocol inbuilt to the 2017 internet suspension rules is an immediate cause for concern.

It may have been that the deaths in Thoothukudi triggered an unprecedented situation, but it is important to ascertain if the subsequent internet clampdown was a necessary and proportionate response to restore tranquillity in the region. The suspension rules fail to provide a “standard operating procedure” or any form of guidance. Sans legal yardsticks, the state government enjoys a free hand to muzzle dissent on the pretext of maintaining law and order without even having to consider a more cautious and measured shutdown.

Resorting to brute force both online and offline, at the very least, reveals the complete unpreparedness of the state government to deal with the protests. The absence of any positive effort to dispel rumours also shows the lack of courage by the local administration to engage with citizenry. The decision to suspend internet access in neighbouring districts was also ill thought out. It was only reversed after scathing observations from the Madras High Court, which was monitoring the law and order situation in the region.

There was no reason either to suspend the internet across all platforms (mobile and fixed line), when the ostensible justification was to prevent provocative messages from spreading through social media alone. It is also apparent that the government did not think of restricting the shutdown to few localities, or for intermittent periods.

Fait accompli?

There are problems with the review mechanism too. Although the 2017 suspension rules provide for a review mechanism, the mandate of the Review Committee is limited to examining the validity of the suspension order. In other words: to ascertain if circumstances of public emergency existed. Strictly speaking, the committee need not even examine if the police had considered other alternatives, or whether any steps were taken to dispel rumours in the first place.

As such, the composition of the three-member committee, consisting of top government functionaries (including the Chief Secretary and Law Secretary), does not inspire much confidence with regard to impartiality considering that the order that they would be reviewing is passed by one of their colleagues acting as the competent authority (Secretary of the Home Department).

And what can the review committee do anyway? The rules permit up to five days for the committee to convene a meeting to review the suspension order. By then, their decision would have no impact on the public.

In cases of internet shutdowns, the collateral damage to the economy and essential services is quite substantial. A recent report by the Indian Council for Research on International Economic Relations estimated an “hourly loss for India over the various shutdowns during 2012-2017 is $186,332.” But one cannot put a figure on personal distress and opportunity cost to many.

Sai Vinod is a lawyer based in Delhi. He also represents the Internet Freedom Foundation on their litigation-oriented advocacy-efforts.