RTI application response from Rajasthan shows Procedural Lapses and Arbitrary Orders
We at SFLC.in have been tracking incidents of Internet shutdowns across India in an attempt to draw attention towards the number and frequency of shutdowns, which are imposed for reasons ranging from curbing unrest to preventing cheating during examinations. This data is made publicly available in the form of an interactive Internet Shutdown Tracker hosted on our dedicated website www.internetshutdowns.in, which also features additional resources on the topic.
In the months of September and October 2021 it was observed by us that Government of Rajasthan had imposed 3 Internet Shutdowns to prevent cheating in examinations conducted by the state government. It is to be noted that, prevention of cheating in exam is not a valid reason to impose an internet shutdown. According to rule 6 of The Temporary Suspension Of Telecom Services (Public Emergency Or Public Safety) Rules, 2017 an internet shutdown has to be imposed due to public emergency or public safety reasons and must be in accordance with section 5(2) of the Indian Telegraph Act. Preventing cheating in exams fails to meet the threshold of public emergency or public safety.
In addition to that, these shutdowns were imposed by the government, despite submitting before the Rajasthan HC in the matter of Dhirendra Singh Rajpurohit v. State of Rajasthan [D.B. Civil Writ No. 10304/2018], that it shall not impose an internet shutdown to prevent cheating in exams. Further, we wrote to the state government requesting them to restore internet services on urgent basis as the same was arbitrary and illegal. The letters can be accessed here and here.
As a practice we file regular applications under the RTI Act to correct and collate data that goes on our tracker. We again filed multiple applications to different states to gather shutdown orders which were not publicly available. One of these applications was sent to government of Rajasthan asking for orders for suspension of internet during the month of August 2018, as our tracker reflected that there was a shutdown imposed in various districts of Rajasthan on 5th August 2018 to prevent cheating in State Public Service Commission Exams.
The application was filed through the online RTI application portal of Rajasthan government on 26th October 2021. In response to this application, we received a reply that the application has been transferred to different districts in the state. Subsequently, we received replies from the offices of Divisional Commissioners for payment of requisite fees to receive information. Upon payment of fees we have so far received responses from the Divisional Commissioners of Kota, Bikaner and Ajmer. The response received from Divisional Commissioner of Ajmer is discussed in this post.
Our application was filed seeking answers to the following questions from the Home Department, Government of Rajasthan:
Whether any internet shutdown was ordered during the month of August 2018? We further asked for copies of orders imposing internet shutdowns.
Under what provision of law an internet shutdown was imposed?
What was the designation of the officer who ordered for an internet shutdown?
If there is a Review Committee constituted as per rule 2(5) of the Telecom Suspension Rules? We also asked for minutes of the meeting of this Review Committee.
The salient points from the response are as follows:
Internet Shutdown to Prevent Cheating in Exams
The RTI response reveals that a total 6 shutdowns were imposed during August 2018. Out of these one was imposed in the districts of Ajmer, Bhilwara, Naguar and Tonk to prevent cheating in exams. The shutdown was imposed on 5th August from 9:00 am to 1:00 pm.
Notification delegating power to the Divisional Commissioner to issue Internet Suspension Orders
The RTI response states that the law under which the suspension was ordered is Order Number F 35(1) Home-9/ 2006 Pt. Dated 02-09-2017 issued by Home (Gr.9) Department of Rajasthan Government. The copy of the order provided in the response states that in exercise of the powers conferred by Rule 2(1) of the Temporary Suspension Of Telecom Services (Public Emergency Or Public Safety) Rules, 2017, the Divisional Commissioners of the State of Rajasthan are hereby empowered to exercise the powers conferred by the Rules in case of public emergency or public safety. This essentially resulted in delegation of powers by the Home Department to the Divisional Commissioners, as it is a blanket order without an end date. The order is dated 2nd February 2017 and the copies of internet suspension orders are dated 4th August 2018, 23rd August 2018, 24th August 2018, 26th August 2018, 27th August 2018 and 31st August 2018.
However, such a delegation is perverse in law. Rule 2(1) of the Telecom Suspension Rules clearly states that direction to suspend telecom services shall not be issued except by an order made by the Secretary to the State Government in-charge of the Home Department. Further the rule provides that in case of an emergency where the order cannot be passed by the Secretary, the power to issue an order is with an officer equivalent to the rank of a Joint Secretary to the Government of India. Thus, the rules provide for a clear procedure to be followed for suspending internet. It does not provide for any delegation of this power. It is a settled principle of law that when a statute provides a procedure for exercising a power then the power must be exercised in that manner only. Therefore, this notification which essentially created an alternate procedure for imposing an internet shutdown is illegal and arbitrary.
No Review Committee
Further, the response by the Divisional Commissioner also states that there exists no Review Committee at the level of Divisional Commissioner Ajmer. The state Home Department has also not sent any reply in this regard. Therefore, we do not know if a review committee has been formed by the Rajasthan Government, even after 4 years of the Telecom Suspension Rules coming into force.
The copy of our RTI application and the response received from Divisional Commissioner Ajmer are given below: