A Draft to Disconnect: IFF’s Analysis of the Draft Telecom Suspension Rules, 2024

tl;dr

On August 28, 2024, the Department of Telecommunications [“DoT”], Ministry of Communications [“MoC”] released the draft Temporary Suspension of Telecommunication Services Rules, 2024 [“draft 2024 Rules”] to the public. The draft 2024 Rules were first published on August 29, 2024, on the Gazette of India website. Alongside the Suspension Rules, the MoC also released three other draft Rules, covering interception, telecom cybersecurity, and critical telecom infrastructure. The MoC is seeking objections or suggestions for 30 days on all four draft Rules. Given the wide-ranging implications of these draft Rules on our constitutional freedoms, we will be releasing a detailed analysis of each Rule in the coming days. This post includes our in-depth analysis of the draft Suspension Rules, 2024, along with a table comparing the relevant modifications/ revisions under the draft 2024 Rules with the corresponding provisions under the 2017 Rules. 

Important documents

1. Draft Temporary Suspension of Telecommunication Services Rules, 2024 (link)
2. Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (link)
3. IFF’s analysis of the draft Suspension Rules, 2024 (link) ✨
4. The Telecommunications Act, 2023 (link)
5. Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (link)
6. E-gazette notification for enforcement of sections of the Telecommunications Act, 2023 dated June 21, 2024 (link)
7. Public Brief on draft Indian Telecommunication Bill, 2022 dated October 27, 2022 (link)
8. IFF’s first read of the Telecom Bill, 2023 (link)

Background

These draft Rules have been released in pursuance of Section 20 and Section 56 of the Telecommunications [“Telecom”] Act, 2023, which was enacted amid widespread chaos in the Parliament while over 140 opposition Members were suspended. The Telecom Act, 2023 received Presidential Assent and was published in the gazette on December 24, 2024. On June 21, 2024, the MoC issued a gazette notification to bring into effect certain sections of the Act, namely Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62, from June 26, 2024. 

The draft 2024 Rules seek to supersede the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 [“2017 Rules”] and Temporary Suspension of Telecom Services (Amendment) Rules, 2020 under the Indian Telegraph Act, 1885. Notably, the draft Rules will not override existing suspension orders issued under the old regime and the terms and conditions of existing orders will continue to apply till the end day prescribed by such an order.

The need for democratic dialogue on the draft 

The draft 2024 Rules states that it is being "published for the information of all persons likely to be affected" and will be considered after a 30-day period from the date it is made available to the public in the Official Gazette. Although it does not explicitly state that the DoT is initiating a public consultation on the draft Rules, it does state that any objections or suggestions may be addressed to the Joint Secretary (Telecom) at the DoT, MoC. Although we are unsure to what extent the public input received will be actively considered during the finalisation of these Rules, we encourage affected stakeholders (all of US) to participate in the process. We also hope that DoT will publish on its website all the inputs/ comments received as well as its reasoning for introducing any revisions/ modifications to the final notified version. 

Notable modifications

1. Publication of orders: The draft 2024 Rules mandate that all suspension orders must be published. This is an improvement from the status quo, as Anuradha Bhasin v. Union of India [(2020) 3 SCC 637] noted that one of the lacunae in the 2017 Rules was that it did not have an explicit requirement for publication of suspension orders [paras 104-105]. Consequently, in line with the principles of natural justice, the Supreme Court read-in the requirement of publication of suspension orders––so that affected parties could effectively challenge the same before the appropriate authority [para 104]. The Anuradha Bhasin judgement also held that the suspension orders should be made available through “some suitable mechanism” [para 104] –– However, the draft 2024 rules do not explicitly prescribe the mode and mechanism of publication of suspension orders.
2. New powers for the Review Committee: The Review Committee under the draft 2024 Rules has been empowered to set aside suspension orders. This is a notable change, as under the 2017 Rules, the Review Committee could merely "record” its findings and did not have the power to set aside suspension orders. Anuradha Bhasin also held that in addition to evaluating conformity to procedure (i.e. Section 5(2) of the Telegraph Act, which is equivalent to Section 20(2)(b) of the Telecom Act, 2023), the Review Committee must also evaluate if the suspension order is in consonance with the proportionality principles [para 108]. This requirement/ safeguard is missing in the draft 2024 Rules.
3. Revised timelines to share the suspension order with the Review Committee: A copy of the suspension order must be placed before the Review Committee within 24 hours of issuance. The explicit mention of a 24-hour timeline marks a positive change from the 2017 Rules under which this process may get delayed due to national and/or regional holidays, non-working days, etc. as it allows for such a copy to be forwarded to the concerned Review Committee by the ‘next working day’. 
4. Suspension order must define the geographical scope: The draft 2024 Rules state that the suspension orders must clearly define their geographical scope and the order must be limited to the outlined geographical areas. These safeguards, at least on paper, do not exist in the 2017 Rules.

New bottle, old wine (not the finely aged kind, either)

1. Independence of the Review Committee: The composition of the Union and State-level Review Committee continues to be the same as the 2017 Rules––it still lacks the necessary independence required to conduct an impartial review as the committee tasked with reviewing the order issued by the issuing authority includes members of similar rank within the same branch of government (the Executive). This raises legitimate concerns about a potential conflict of interest, as the Review Committee may include individuals from the same branch of government––violating the principles of natural justice that no one shall be a judge in their own cause. Further, the only stakeholder heard by the Review Committee is the competent authority that issued/approved the suspension order. The draft 2024 Rules fail to provide a mechanism for affected parties to present their case before the Review Committee
2. 15-day cap on the operation of Suspension Order: The draft 2024 Rules continue to maintain the cap on the operation of a suspension order, with a slight modification that the suspension order must define a specific duration, not exceeding 15 calendar days. Anuradha Bhasin noted that the 2017 Rules did not prescribe a maximum time period for the operation of a suspension order and held that the operation of a suspension order cannot be indefinite since the nature of restrictions in the 2017 Rules is temporary, and the restrictions cannot “extend beyond that time period which is necessary” [paras 108, 160.4]. A 15-day cap for the operation of a suspension order is excessively long, considering that such orders are typically issued for 1 to 3 days, often for shorter periods. This provision pertains to the duration of an individual suspension order rather than the cumulative duration of an internet suspension. While the issuing authority can issue orders within this 15-day limit, they have, in practice, issued successive orders. For instance, in Manipur, 5-day suspension orders were issued repeatedly every 5 days, effectively extending the suspension period beyond 15 days, resulting in an indefinite suspension. Similar practices have been observed in Jammu and Kashmir. The draft 2024 Rules fail to specify the reasoning/ justification for prescribing 15 days as the benchmark. Prescribing this limit does not serve as a safeguard against internet or telecom suspensions that, in effect, operate for prolonged or indefinite periods.
3. 5 Day timeline for review Committee Review: While the timeline for the Review Committee meeting has been shortened from 5 working days to 5 calendar days, it is yet to be seen if in practice the new timelines will be affected by delays due to national or regional holidays, non-working days, etc. Such delays may hinder the timely review of suspension orders, affecting the overall effectiveness of the oversight mechanism. Since most suspension orders are of shorter duration, typically around 1 to 3 days, by the time the order is forwarded to the Review Committee, the internet suspension might have already ended. This delay renders the review process merely an academic exercise, as it would be unable to halt an ongoing internet or telecom suspension.
4. No provision for the publication of Review Committee orders: Unlike the publication of suspension orders, the draft 2024 Rules do not explicitly require the publication of Review Committee orders. In Anuradha Bhasin, the Supreme Court held that all orders issued under the 2017 Rules, including the Review Committee orders must be published [paras 104-105]. Recently, the Indian Supreme Court in Foundation for Media Professionals v. U.T. of J&K, MA 1086/2020 by final order dated 23.02.2024 clarified that “though it may not be necessary to notify the deliberations of the Reviewing Committee, it will be necessary to publish the final order”. Access to Review Committee orders is crucial for affected parties to challenge suspension orders before the appropriate forum, ensuring transparency and accountability in the process.

#KeepUsOnline

In conclusion, while the draft 2024 Rules under the Telecom Act, 2023 introduce some minor improvements, it falls woefully short of delivering the robust safeguards required to protect our constitutionally enshrined freedoms. The Telecom Act, 2023, with its deep-rooted colonial-era provisions and the unchecked authority it grants for internet suspension to the Executive, marks a critical juncture—one where meaningful reform has been largely overlooked. The draft 2024 Rules entrenches a system that continues to erode fundamental rights under the guise of governance.

As India continues to lead the world in the number of internet shutdowns, now for the sixth consecutive year, the urgency for reform cannot be overstated. We stand by our initial ask to the Ministry to repeal the Telecom Act, 2023 and appoint a Law Commission and/or an unbiased, independent Standing Committee or expert body to look into the kinds of reforms needed for the telecom sector.