While these shutdowns are put in place to address some ‘harm’ that is facilitated by the internet, there is no rulebook in place for instances in which they can be ordered. Moreover, these measures fail to discriminate between innocuous and allegedly harmful uses of the internet. To top it all off, such shutdowns are ordered not by the legislature, but by the executive.
Over a period of time, they have become a routine administrative tool which is used in ways that have led to disastrous consequences for the personal, professional and psychological lives of individuals. This problem will only further be exacerbated if the recently formulated Draft Indian Telecommunication Bill, 2022 is passed.
In this post, the author shall examine, primarily through the lens of the doctrine of excessive delegation, Clause 24 of the Bill, which confers the power to impose an internet shutdown upon the executive.
Clause 24: The what and why
Through its Clause 24, the Bill allows the Central and state governments to impose internet shutdowns or wholly suspend any telecommunication services. The exercise of such wide discretionary powers rests upon the subjective satisfaction of the government that a state of public emergency or a situation that threatens public safety indeed does exist.
Administrators in Rajasthan have previously imposed shutdowns thrice in three weeks in order to prevent malpractices in a local-level examination. Such instances are not unforeseeable, given the phrasing of the Bill which allows for shutdowns if the government is “satisfied that it is necessary or expedient to do so”.
Given the obvious risks, one may pause to wonder why such vague laws are enacted in the first place. That a body entrusted by the ballot to legislate for the nation willingly frames laws that enable abuse of power by the government is a hard pill to swallow. The reason becomes clear if we transplant the framework outlined by Buchanan and Tullock in their work, which primarily deals with the public choice theory. Their framework is built using two main pillars: first, decisional costs; and second, external costs. Decisional costs are those incurred in reaching a consensus on any subject matter that involves multiple stakeholders.
For instance, introducing reservation for a new segment of the population is a rule that would impact multiple actors in the society and would thus require consultation with everyone in order to reach an agreement, making the decisional costs for this rule extremely high.
External costs, on the other hand, are costs that are incurred by any specific stakeholder because of the formulation of any provision of law. Essentially, external costs are embodied in the detrimental impact an actor faces due to a legal rule that tampers with their life, made by someone else.
This framework makes clear the reason behind Parliament’s decision to frame the Bill as broadly as it did. By doing so, it avoided the decisional costs that it would otherwise have to incur if it consulted all the actors involved, which in the context of the internet, would mean billions of users across the country. Consequently, external costs will now pushed onto individuals subjected to shutdowns which are as unreasonable as the aforementioned Rajasthan government order.
It is possible to argue, as some scholars do, that given the realities of modern-day governance, it is not possible to rely solely on the legislature to frame rules on each and every aspect of every subject. Some amount of delegation is not just inevitable but often preferable. However, this does not mean that the administrators should be allowed to govern by ‘a nod and a wink,’ as American legal scholar Philip Hamburger puts it. Parliament should take care to deliberate upon the trade-off between decisional and external costs, while keeping in mind that efforts to seek a broader consensus would possibly restrict the use of overly broad discretion, in turn limiting the potential of abuse.
A case of excessive delegation
Existing Indian jurisprudence suggests that there exist certain essential legislative functions which cannot be delegated to the executive. Broadly, these include ascertaining a legislative policy and enacting it into a binding rule of conduct. If such essential functions are abdicated, then Parliament will have essentially effaced itself and the legislation in question would be struck down for suffering from the vice of excessive delegation.
In the Bill, no parameters have been outlined for what is to fall under the umbrella of public safety or public emergency. It is submitted that some guidelines as to the instances in which shutdowns are to be ordered form a part of outlining the legislative policy and should be clearly present in parent legislation. Ancillary aspects of implementing this policy such as the duration of the shutdown and the exact districts in which it needs to be imposed can be delegated. However, there is a complete absence of legislative policy in the Bill.
As a consequence, shutdowns have been ordered to combat fake news absent any concrete evidence that such a measure can effectively reduce the spread of rumours. In fact, there exists research suggesting the contrary. Even if one is to ignore such research, the question of whether fake news constitutes a public safety threat or is a situation of public emergency is left to be answered as per the whims and fancies of the government.
One possible line of argumentation against a challenge to Clause 24 based on the grounds of excessive delegation is to be found in the majority’s opinion in the case of Rojer Mathew v. South Indian Bank Ltd. In that case, Justice Khanna held that previous judgments of the courts relating to the subject matter of the delegation would invariably guide the executive in the exercise of its discretion and would thus form the necessary policy and guidelines which were otherwise not clearly listed in the parent enactment.
It may thus be argued that the landmark case of Anuradha Bhasin lays down the requisite safeguards and guidelines. In that case, the Court recognised the freedom of expression through the internet and held that any orders for internet shutdown must meet the tests of necessity, expediency and proportionality.
The author, however, believes that the majority’s view in Rojer Mathew is not the correct one to take in light of the drastic and wide-ranging consequences of the potential misuse of shutdown powers. These consequences are only further exacerbated when one brings Telecommunication Service Providers (TSPs) into the picture. TSPs offer unconditional compliance to internet shutdown orders despite such suspension leading to grave economic losses for their business. The reason being that the government-issued licence under which they operate stipulates that non-compliance with such orders can lead to the revocation of the licence.
Right from deciding the grounds on which the internet is to be suspended, to drafting of the order to the final implementation of it, the government emerges as the controlling authority. To avoid a one-man show, a stricter standard must be followed with respect to the permissible limits of delegation.
Justice Gupta’s dissent in Rojer Mathew shines a beacon of light in this regard. Looking at the existing rules framed under the parent enactment in that case, he found that the executive had already acted against the principles of what was outlined in precedents. Given this, it became apparent to him that neither the delegator nor the delegate considered itself to be bound by the previous jurisprudence. He thus concluded that since in the absence of such precedents, no guidelines existed in the parent Act, unfettered and unguided discretion had been bestowed upon the executive.
Past internet shutdowns in India have in no way been proportionate within the meaning of the guidelines laid down in Bhasin. The previously laid down standards for what can be considered a public emergency or a threat to public safety have also not been followed in the imposition of such shutdowns.
For instance, telecommunication services have previously been suspended due to matters like illegal forward trading in one particular hotel, which cannot be said to constitute a ‘public’ emergency. At best, even if such activities were conducted on a larger scale, courts have clarified that this would only constitute an economic emergency which is to be differentiated from instances of public emergency.
In light of such facts, it can be concluded that thus far, administrators have not considered themselves to be bound by judicially formulated guidelines regarding shutdowns. And the situation is not likely to change even with the passing of the Bill, since it does not lay down any explicit requirement to abide by prior judgments. In the lack of any clear policy or guidelines, Clause 24 of the Bill provides a fertile ground for excessive delegation.
Even if a lenient standard towards delegation is adopted to allow the retention of Clause 24 of the Bill as it currently stands, potential safeguards can be infused in the Bill if the practices embedded in the United States’ Administrative Procedure Act are borrowed. The Act requires administrative agencies to publish all proposed rule-making for public scrutiny in order to enhance the values of consultation and transparency in subordinate legislation. A clause requiring all proposed subordinate legislation to be published can thus be introduced in the Bill. In line with the theory of Buchanan and Tullock, this would help reduce decisional costs at least at the level of framing subordinate legislation, if not at the stage of drafting the parent legislation. Consequently, the external costs that are faced by actors such as those who are subjected to internet shutdowns, TSPs, and the like will be reduced.
Ishika Garg is a student at National Academy of Legal Studies & Research (NALSAR) University, Hyderabad.