Until 2017, India did not have a codified law to order internet shut downs. A general power was vested in District Magistrates in this regard. The Magistrate could issue an order ordering a shut down if a ‘speedy remedy’ (extending to internet shut down) is desirable for ‘immediate prevention’ of an event. The Magistrate had to be satisfied that the order is ‘likely to prevent or tends to prevent obstruction, annoyance or injury to human life, health or safety, or a disturbance of public tranquillity’. The Magistrate’s order cannot be for longer than two months.

In 2017, new rules to order internet shut downs were introduced taking the power away from the Magistrate. These rules — the Temporary Suspension Rules — state that internet shut downs can only be ordered by the Home Secretary of the Union or State Governments. Only in “unavoidable circumstances” can the passing of orders be delegated to someone 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. Shut downs can be ordered where ‘necessary’ or ‘unavoidable’ during a ‘public emergency’ or in the ‘interest of public safety’. Shut down orders must necessarily detail the reasons to shut down the internet. The orders must also be sent to a review committee under the state or central government within 24 hours. The committee must then review them within five working days. The rules state that apart from the Chief Secretary and Legal Secretary, the committee can comprise a secretary other than the home secretary.

In January 2020 the Supreme Court passed its judgement in the case of Anuradha Bhasin. The judgement in this case explicitly recognised two things: that the freedom to access information is a fundamental right under Article 19(1)(a) of the Constitution of India (which protects the freedom of speech and expression); and that the freedom to conduct your trade, profession or business over the internet is also a fundamental right under Article 19(1)(g) of the Constitution of India (which protects the freedom to practise any profession, or to carry on any occupation, trade or business). Every time the internet is suspended, it is quite obvious that it is a violation of these rights. These rights 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’.

The Supreme Court’s judgement in Anuradha Bhasin’s case had also underlined that shut down orders must clearly provide reasons for the shut down and they must be publicly available.

[Extracted, with edits and revisions, from “In India, are internet shut downs in accordance with law? Not always”, by Diksha Munjal, News Laundry]

Assume that in the above instance, the Joint Secretary passed the order. The order stated: ”By means of the discretion vested in me by the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, I suspend internet across all Indian States and Union Territories on October 25, 2021”. The order was passed on 15 October, 2021. The order was sent to the Central Government review committee within 8 hours of its passing. The committee reviewed and approved the order on 22 October, 2021. Is the order legal?