Over the last fortnight, there were media reports, as well as information from service providers informing us that bulk SMSs and MMSs were banned for 15 days, until August 30. Under directions from the Central Government, originally, users were only permitted to send 5 messages at once, and a few days later, this number was increased to 20. The order bans bulk messages, which should imply that it is a cap on the number of messages sent simultaneously, although this was not made clear in the order, and has, consequently, impacted implementation of the order, as I will discuss later. The order was issued by the Ministry of Home Affairs, and was to be implemented by the Department of Telecom, through a directive sent to service providers. A copy of the order has not been made available on the internet; there is only an excerpt from the first order available here. This excerpt shows no reasons attached, leaving us to assume from media reports, that the order is a consequence of the spate of violence directed at Indian citizens from the north-east.
Legal validity of the order
Executive orders, such as this one, are constitutionally valid, where they meet two broad conditions. The first is that the power to make such an order vests with the Executive, and in this case, with the Ministry of Home Affairs, and the Department of Telecom. The second condition is that the order should not violate fundamental rights under Part III of the Constitution. The relative ambiguity surrounding the direction to ban bulk messages for a fortnight suggests the order may fail to meet both these conditions, and so they would both be looked at in some detail.
Competence to make such an order
Since the copy of the order that is available does not disclose the authority under which/in exercise of which the government issued such an order, we would have to assume (since it is an incomplete copy) that it comes from the broad powers given to the Central Government to issue orders under the Indian Telegraph Act, 1885, including the power to make rules to govern the use of telegraphs and to prevent the transmission of certain telegraphs in the interest of public safety. The Ministry of Home Affairs and the Department of Telecom would both be considered Central Government within the purview of this Act.
Compatibility with Fundamental Rights
The order has had an impact on the freedom of speech of citizens generally, by curbing their right to communicate without restrictions. There were also specific classes of persons who were affected more than others: telemarketers, whose right to engage in commercial speech is protected, as well as their freedom of trade and occupation; in several other instances, the order impacted the ability of citizens to communicate with each other. One significant problem with the order was in its implementation, with some service providers being technically unable to implement the ban, while some others implemented it incorrectly, leading to the ban being imposed not on simultaneous messaging, but on the availability of the service all day. Another serious problem was that the ban was only being imposed on pre-paid customers, and not on post-paid ones, thereby creating different classes of consumers, who were treated differently. These appear to be a direct consequence of lack of clarity in the order itself, and a lack of oversight in the technological implementation, and not due to the fact of the ban itself. If the aim of the order was merely to curb hate messages which induced fear in an entire community, then creating a difference in merely the implementation, between categories of customers of service providers, does not flow from the reasons behind imposing the ban in bulk messages.
The ban clearly impacts the freedom of speech, and can only be constitutionally upheld, it if were to fall within the restrictions laid out in Article 19(2) of the Constitution. It appears to me that the ban can be upheld on the grounds of public order considerations which it seeks to meet. An additional requirement which exists with these restrictions is that of proportionality to the harm that it attempts to control against: the restriction would have to strike a proper balance between the right to freedom of speech and expression, and the restrictions imposed due to social control. I believe that the order, if read and implemented strictly, would meet this requirement, given the specific time frame in which it was to apply, and that it allowed bulk messages to be sent as well, and only reduced the number which could be sent.
The problem with these orders, however, lies in their lack of transparency. For the purposes of this argument, I would define transparency as a lack of communication to the general public as a result of unavailability of the order. Our only source of information is secondary: to the limited extent that it is being reported by the media, and the actual inconvenience that the public faced while the ban was in place. What little information we have suggests that the order was only communicated to service providers, which should not be the procedure which was followed. Ideally, the orders sent to individual service providers should have been based on a rule which was made public, since a long standing principle of delegated legislation, such as orders and directives such as these, is that they should be published in the Official Gazette. The absence of procedural safeguards would suggest that the reasonableness standard in Article 19(2) has not been met.
Additionally, all laws, orders and rules under the Indian Constitution should meet the equality standard under Article 14, which requires that there should be no arbitrariness in the law. Arbitrariness, the Supreme Court has said, is antithetical to equality, and that the equality clause in the Constitution is intended to prevent arbitrary and capricious actions of the Executive. This requirement of non-arbitrariness also extends equally, to procedural and substantive orders and rules. When a question of fundamental rights is involved, the Supreme Court has always interpreted rights broadly, and restrictions narrowly, so as to allow maximum enjoyment. This model, when applied here, would also require non-arbitrariness to be read broadly. Thus the failure on the part of the Government to make the orders public would imply the absence of transparency that these orders exhibit also shows their arbitrariness, and could easily be contested as violations of the constitutional provisions on equality.
Media reports suggested that although it was the Ministry of Home Affairs which had issued the order, it was being implemented through directives issued by the Department of Telecom. A nationwide ban on regular services, when effected, should be properly implemented and overseen by the designated authority, which is assumed to have the technical awareness to ensure that in implementation, its mandate is not overstepped. Although the ban, when restricted to 5 or 20 bulk messages was on its own proportionate to the perceived harm to public order caused by the speech attempted to be curbed, the arbitrariness of implementation, between pre-paid and post-paid customers, as well as the technical issues that were faced, all lead to issues of implementation which violate the equality and non-arbitrariness requirement that all actions which affect the freedom of speech should meet.
By failing to provide us with a reasoned order which justified the Government’s actions and by failing to oversee the implementation of the order strictly, as should be done when there is a restriction of fundamental rights, there is a violation of our fundamental rights of both equality before the law, and of the freedom of speech and expression, through the effect of arbitrary laws.