A Threat to Our Fundamental Rights: Tharoor on Internet Shutdowns

India wears the dubious crown as the country with the highest number of internet shutdowns in the world.

Shashi Tharoor in a Q&A on internet shutdowns in India.

(Photo: The Quint/Shruti Mathur)

India wears the ignominious crown as the country with the highest number of internet shutdowns in the world.

No other nation cuts off access to the internet from its citizens more than India: 128 times this year to be precise.

2018 has already been the worst year for open internet in the country. While India had shut down the internet 31 times in 2016, it did so 79 times in 2017, according to a tracker maintained by the Software Freedom Law Center India.

Access Now, a global human rights advocacy group defines internet shutdown as “an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.”

“Internet Shutdown Rules are yet another example of how this government abrogates further power to itself, without any form of accountability,” Shashi Tharoor told The Quint in a Q&A.

Tharoor, a Congress MP from Thiruvananthapuram, on 28 November, wrote to DK Gandhi, chairman of Parliamentary Committee on subordinate legislation, urging him to ‘undertake a comprehensive review of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

The Ministry of Communications passed the rules quietly in August 2017, without any prior public consultation.

Here’s what Tharoor had to say about the issue:

1. Internet shutdowns in India have been on a steady rise over the years. How do you interpret this pattern and is there an underlying political agenda in curbing access to the internet?

The Prime Minister had promised us “minimum government” in our lives, attempting to take a leaf out of Ronald Reagan’s book. However, ironically the Internet Shutdown Rules are yet another example of how this government abrogates further power to itself, without any form of accountability.

Shutting down the internet in any region is an extremely powerful tool. If government uses its powers of delegated legislation to give more power to itself to control the internet and telecommunication services, without adequate safeguards, then one can safely infer that the underlying purpose is to concentrate power and restrict freedom of expression, which has worrying implications for our democracy.

2. As you have pointed out in your letter, the Temporary Suspension of Telecom Suspension Rules (2017) was passed quietly and without any prior public consultation in August 2017. How would you equate the framing of the rules and the lack of pre-legislative consultation?

The lack of pre-legislative consultation in framing any legislation, including rules and regulations, is usually detrimental as all interests are not considered and catered to. Nor are the views of people’s representatives heard. It will lead to an imbalance of power and arbitrary misuse of it, as is quite evident in these Rules which grant excessive power to the executive.

Additionally, in a democracy all laws are supposed to be made on behalf of the people for the people; removing their ability to have  a say, and even to make suggestions, would be antithetical to the principles of democracy. Therefore, a transparent and inclusive pre-legislative consultation is essential and should have occurred before promulgating these Rules.

3. The rules do not specify the grounds of ordering a shutdown, but only specify who can order them. Given that the rules have not curbed shutdowns, how does it affect the government’s Digital India mission or impose financial, social burdens?

The failure to clearly enumerate grounds to order an internet shutdown will allow authorities to misuse the Rules and order shutdowns for trivial reasons in a disproportionate manner. As I have mentioned in my letter to the Parliamentary Committee on Subordinate Legislation, internet shutdowns have been ordered for reasons such as preventing cheating in an exam. This can be done through various other means, rather than restraining right of free speech of all the people in the vicinity.

Snatching away of the right of free speech of all those living in surrounding areas for no fault of theirs not only impacts their social communication, but also leads to economic loss as most business transactions are shifting to online media. The economic loss because of internet shutdowns between 2012 and 2017 is approximately Rs 22,154 crores, as per the Indian Council for Research on International Economic Relations’ Report.

Digital transactions depend on stable internet services; so by arbitrarily disrupting these services, Digital India can never be realized. While there are economic costs involved in using such powers, my primary concern is in relation to the threat it poses to our fundamental rights.

A tracker displaying the state-wise break up on internet shutdowns in India since 2012.(Photo Courtesy: Software Freedom Law Center India)

(Photo courtesy: Software Freedom Law Center India)

4. On the broader issue of internet governance and policy, you had advanced your version of a data protection bill. Do you see issued of technology and the internet evolving into an election or a mass political issue in a country like ours?

The issues of technology and the internet must evolve into an election issue. The development of technology and the widespread use of the internet is redefining our fundamental rights, especially the right to privacy and the right of free speech. Additionally, it is changing business models and the manner of committing crimes – “cyber crime” has entered our vocabulary.

Technological advancements may lead to situations which were not thought of when our present laws were drafted. Therefore, the law also needs to catch up with changing times, and that can only be achieved through a strong political will to do so.  The internet has created a parallel universe across all facets of life. As the consequences, positive and negative, are unimaginable, it is pertinent that we acknowledge and address the immediate impact that we see on our primary rights and everyday transactions.

The media has a crucial role to play in raising awareness about these issues, in order for it to become an issue for discussion and debate during policy formulation.

5. Does the Indian National Congress have an articulated policy position on matters pertaining to the governance of cyberspace, international cyber diplomacy and protection of privacy of citizens?

The Congress believes in using technology to improve the quality of governance, in improving our national security, and we believe that India should take a leading role in the formulation of international norms on cyberspace and use cyber diplomacy to our advantage, as long as it does not violate the fundamental rights of Indian citizens.

The Congress supported the idea of using Aadhar as a voluntary mechanism to help identify beneficiaries of subsidies, but we strongly opposed the use of Aadhar to cast a wide net to obtain all sorts of data which is irrelevant to government expenditure.

We support the need to use technology to improve law enforcement and to secure the safety of our citizens, but we oppose policies and laws which threaten our fundamental right to privacy, such as the DNA Profiling Bill, 2018, which has a wide scope for misuse.

Let us remember that this government even tried to contest the idea that privacy is a fundamental right of all citizens before the Supreme Court, whereas during the time of the UPA Government, we appointed a Group of Experts chaired by Justice AP Shah to help identify essential principles of the right to privacy, in order to facilitate the enactment of a law to fortify people’s right to privacy.

Having said all this, I still believe that the Congress should articulate a strong vision on matters relating to technology, data protection and cyberspace.

Here’s the letter that Tharoor wrote to D.K. Gandhi, Chairman of the Parliamentary Committee on Subordinate Legislation