For the past four days, news reports have been flowing in about the shutdown of internet services in Gujarat. With the tense law and order situation prevalent over the Patirdar reservation protests, state government authorities have decided to block access to internet for citizens in Gujarat. However, conflicting reports about the scope of the blockage (whether just mobile or even broadband) or its reach (whether Ahmedabad and Surat only or the whole of the state) do not permit any general, verifiable comment as yet. Yet the confusion does not stop here.

The business of widespread internet blocking in India seems to fall within a regulatory vacuum. Ostensibly this ambiguity is currently being used by the local authorities in Gujarat to justify this most fundamental of all network restrictions – disrupting data access. We may never know. Telecos without hesitation follow local government ‘directives’ on barring internet services, fearing governmental backlash. As a Scroll article noted back in 2014, this compliance mechanism finds itself grounded in sec. 188 of the IPC, relating to disobedience to an order given by a public servant.

Over a two part series, I discuss the legal provisions grappling with internet shutdowns and the constitutionality of the current network disruption in Gujarat (which shall continue for two more days at least). This post deals the competing legal grounds on which turning on the internet “kill switch” may be justified by any government.

Perhaps most closely connected with this issue from a textual standpoint is the Information Technology Act, 2000. The question of the applicability of the IT Act to mobile telephony seems rather straightforward. Sec. 2(1)(ha) of the Act defines “Communication device” to include cell phones. “Communication device” has been further used as a subset of “Computer Resource” under sec. 2(k). This is important because sec. 69A of the IT Act, a rather notorious legal provision, gives powers to the Central Government to block access “by public any information generated, transmitted, received, stored or hosted in any computer resource.” Thus, the Central Government has legal backing to disrupt data services in mobile phones. In essence, sec. 69A grants authority to the Central Government to block access to webpages, websites etc. Indeed, it has conventionally been used only against information on the web. It remains unclear whether it could be used to prevent access to the web itself.

Sec. 69A receives some credibility in legal circles[1] for its inbuilt adjudicatory mechanisms following principles of natural justice under the Blocking Access Rules, 2009 framed particularly for this purpose. On the question of its efficacy in situations of public disorder, the adjudicatory mechanism may be replaced wholesale through an emergency provision.[2]

However, the applicability of sec. 69A to the current internet disruption in Gujarat appears highly unlikely because it fails a preliminary hurdle. Sec. 69A blocks may only be initiated by the Central Government. In Gujarat, the local police seem to have directed telecos to shut public access to the internet.

Another regulatory source for internet disruption may be the Indian Telegraph Act, 1885. While originally intended to regulate telegraphs, a flurry of amendments expanded the scope of the Act to regain relevance. As the Supreme Court observed in May this year,

Strangely, there is no enactment in this country dealing with the establishment and working of telephones. The 160 year old telegram system in this country was officially closed on 14th July, 2013. Ironically, the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 still continue on the statute book. By virtue of the various amendments made from time to time, these two enactments still continue to govern the entire activity of establishment, maintenance and working of telephones and various other telecommunication services.[3]

Of particular importance to our discussion here is sec. 5 of the Telegraph Act, which attached the Government with the power to detain or even intercept messages. Specifically, sec. 5(2) states

(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government … may, if satisfied that it is necessary or expedient so to do in the interests of … public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message … shall not be transmitted, or shall be intercepted or detained …

It is evident that the state government may block the transmission of any message, provided it falls within the contours of Art. 19(2) of the Constitution (relevant here are the public order and incitement exceptions). At the outset, unlike under the IT Act, the Telegraph Act does not discriminate in affording powers to the Central and the State Governments. However, the textual backing for widespread internet disruption appears shoddy. Arguably, on a long shot, the power to stop the transmission of communication or detain it may be interpreted as the ends to justify the means that is internet blocking.

Employing little logic, back in 2012, the J&K home Department issued a Government Order completely blocking access to “www.youtube.com, http://www.facebook.com etc”. Aside from the very disconcerting “etc.”, it may be noted that the J&K government cited its powers under sec. 5(2) of the Telegraph Act as its basis to block these websites. Yet, there exists a more direct provision in statute books to block access to particular websites – sec. 69A of the IT Act, as we discussed above. The use of sec. 5(2) of the Telegraph Act by the J&K Government is evidence of the confusion prevalent among the government authorities about what laws apply and how they effect action.

Going beyond the realm of statutes and into the world of contract, reference may be made to the Licence Agreement for Unified Licence between the teleco and the Central Government (more specifically, the Department of Telecommunications). Clause 39.15 under Chapter VI (Security Conditions) expressly obliges the teleco,

The Government through appropriate notification may debar usage of mobile terminals in certain areas in the country. The LICENSEE shall deny Service in areas specified by designated authority immediately and in any case within six hours on request.

Two issues arise here. First, the term ‘Government’ is vague. Other clauses of the Agreement employ more precise terms such as ‘Central Government’, ‘Government of India’, ‘Licensor’, ‘DoT’, ‘State Government’. By employing the generic term ‘Government’, it is unclear if State Governments have the power to direct telecos to deny data services, or if it is restricted to the Central Government. Second, there is no trace of ‘appropriate notification’ being issued to order the current Gujarat internet block. While there may be no obligation to publish contractual notifications in the public domain, it would be wise to incorporate this as a governmental best practice to pin accountability.

As we have observed above, the blocking of the web itself, as opposed to information on the web, appears to wrest on multiple albeit flimsy legal grounds. The preliminary questions of who may issue such directives (Central Government only or even state governments), their legal basis, and larger issues of public transparency in issuing notifications need to be resolved. Hitherto, only politically disturbed areas such as J&K have used the instrument of network disruptions to quell public order situations.

A year back, Gujarat witnessed a similar internet shutdown in Vadodara following communal unrest over a Facebook post. That may have well been the first time a conventionally non-disturbed state employed this tactic as a law and order remedy. However, the Gujarat government’s turning back to this tactic to pacify the current Patirdar situation might be evidence that this form of counter-action is here to stay. We would do well to frame a clear policy for such future shutdowns; a policy that respects freedom of speech and strikes the right balance with compelling state interests.

Nakul Nayak is a Fellow at the Centre for Communication Governance.

[1] The Supreme Court in Shreya Singhal v. Union of India refused to find sec. 69A unconstitutional.

[2] See Rule 9, Blocking Access Rules.

[3] Bharati Airtel Ltd v. UoI, para 4, http://supremecourtofindia.nic.in/FileServer/2015-05-14_1431607567.pdf

Original author: Nakul Nayak