Editorial Note: Following the clamp down on social media outlets (including CRI) we hope this brief note on the legal position/nuances would help aggrieved victims consider their response to the government’s reckless censorship. At CRI we are considering our options against what we see as an infringement of our constitutional rights.
These last few days, social networks have been agog with a lot of talk on blocking of “communal websites” by the Government of India. The objectives of the government and the consequences of its actions have been discussed brilliantly on CRI on these two posts here and here. One hopes these 2 posts are available for our readers to read unless the democratic government of the Republic of India decides to flex its muscle to muzzle free speech again. If arm twisting were ever introduced as a sport in Olympics, India can be confident of winning a couple of golds, provided (emphasis supplied) we are represented by members of the UPA.
Anyways, the question that I shall try and address here is- Is it possible for the govt to clamp down on free speech just because it happens to be the govt? Or is there a long-forgotten doctrine called “due process” which the govt of India is bound by? The Govt cannot clamp down on free speech unless the restriction is reasonable and is implemented with a view to preserve the sovereignty and integrity of the country, national security, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (Article 19(2) of the Constitution)
So how did the government go about blocking websites?
On August 17, 2012, in the wake of inflammatory propaganda against citizens of India from the North East, the Ministry of Communication and IT came out with an advisory (available here) which invoked Section 69A and Section 79(3)(b) of the Information Technology Act, 2000 directing all “Intermediaries” to “take necessary action to disable such inflammatory and hateful content on their websites on priority basis”.
Why does the advisory use “such” before “inflammatory and hate content”? This is because the specific reference is to inflammatory and hateful content which incited violence against citizens of India from the North East. Therefore, the mandate to the “intermediaries” according to the advisory was to only block access to websites which incited violence against North-eastern community. This is clear from the first para of the advisory and also from the press release issued by the Press Information Bureau of the Govt (available here. By August 20th, the Govt had blocked 245 websites).
If this be the case, why has access been blocked to two articles on CRI which merely pointed out the plight of North-easterners, and which cannot be remotely accused of inciting violence against North-easterners?
There could be two possibilities- First, under the pretext of protecting North-easterners, the Govt has deliberately chosen to block access to CRI’s genuine attempts at bringing out the truth; or second, the employees at the Ministry must have randomly searched for websites using the keywords “Assam” and “riot”, and blocked all prominent websites which showed up in the search hits. I leave it to the readers to decide which of these possibilities appears to be more plausible.
Coming back to the law, what is the mechanism under the law to block websites and what are the options available under the law to owners of a blocked website to challenge the blocking of their site?
GOVT MECHANISM TO BLOCK WEBSITES
Section 69A of the Information Technology Act, 2000 was inserted in the Act through the Information Technology (Amendment) Act, 2008 (available here). Section 69A reads as follows:
“69A. (1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.”
It becomes clear from a reading of Sub-section (1) that the provision may be invoked to preserve public order or to prevent incitement to the commission of any cognizable offence which relates to the areas mentioned in the provision. In the case of the inflammatory messages against North-easterners, both the categories apply.
What is the procedure to be followed under Sub-section (2) for blocking of websites? The procedure to be followed under Section 69(2) was notified in October 2009 and was called Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (available here).
Which specific provision of these Blocking Rules has the Govt invoked? The Govt appears to have invoked Rule 9 of the Blocking Rules which deals with “Blocking of Information in cases of Emergency”.
Under the Rule, a request is made by any govt department or agency to the Designated Officer under the Rules asking for blocking of information. The Designated Officer evaluates the request and forwards it to Secretary, Department of Information Technology with his recommendations.
Upon receipt of the request and recommendations from the Designated Officer, if the Secretary, DIT is of the opinion that the information must be blocked, he issues an appropriate interim order to an intermediary such as an internet service provider or web-hosting service provider. The interim order could be to block the website/information which is deemed harmful. Neither the intermediary nor the owner of the information/website needs to be heard before the interim order for blocking is issued.
Within 48 hours of the interim order directing blocking of the website, the Designated Officer must place the request for blocking of the website for final determination before a Committee consisting of the Designated Officer, representatives from Law Ministry, Home Affairs and Information & Broadcasting and the Indian Computer Emergency Response Team. In the meantime, the Designated Officer issues notice to the intermediary against whom the interim order was passed, giving the intermediary at least 48 hours from the receipt of the notice to appear before the Committee.
The Committee considers the defense/reply offered by the intermediary with respect to the blocked information, after which the Committee forwards its recommendations to the Secretary, DIT. Based on the recommendations, the Secretary may issue final orders for blocking of the information.
This, in a nutshell, is the procedure the Govt is expected to follow when a website is blocked in cases of emergency.
HOW CAN INTERMEDIARIES/WEBSITES CHALLENGE THE BLOCKING OF INFORMATION
Under the Information Technology Act, there is a Cyber Appellate Tribunal which sits in appeal over certain orders passed under the Act. Section 57 of the Act tells us which orders may be appealed before the Tribunal. However, an order under Section 69A does not appear to fall within Section 57. Simply put, there does not appear to be a provision for appeal before the Tribunal against orders of blocking of information passed under Section 69A.
What is the option then?- Jiske pass kuch nahi hota hai, Uske pass Writ Petition Hota hai!- Aggrieved intermediaries or websites may approach High Courts challenging the decision of the Secretary, DIT under a Writ Petition filed under Article 226 of the Constitution.
Was Section 69A introduced in the IT Act with the specific intention of stifling genuine political criticism? If yes, why did not the members of the Opposition, including the BJP, sense this and debate it out in the Parliament when the Amendment was being passed? This takes me back to the issue of taking the business of legislation seriously, instead of frittering away energies in aimless ruckus.