At the heart of the Narendra Modi government’s controversial order to Twitter is Section 69A of the Information Technology Act. This is the law that gives the government the power to block online content.
The first website to be blocked in India was of the Pakistani newspaper Dawn, during the Kargil war. The legal framework for blocking websites evolved only later, and is overly influenced by national security concerns. The security concerns become a garb for censoring all kinds of speech, especially voices that disagree with the government of the day on politics and policy. The answer to all your questions is national security.
Internet blocking got legal cover through the Information Technology Act of 2000, when the Vajpayee government was in power. But it gained prominence and usage when the UPA government started using the provisions for political reasons. Today, the Modi government is doing the same. What begins with national security always ends with politics.
Why it is undemocratic and unconstitutional
It would be difficult for anyone to argue that the government can’t have any online content or platform blocked. We know that free speech in India is subject to some “reasonable restrictions”. Considering that the government constitutionally has such powers to censor films and books, it also will have the power to block online content, platforms and publications.
But let us look at how books and films are banned, versus how online content is banned, and it will become clear that the process of blocking online content in India is undemocratic and unconstitutional.
Films in India have a pre-censorship mechanism. They need certification from the Central Board of Film Certification, popularly known as the Censor Board. If the Censor Board decides to not give you a certificate or ask for some cuts, it will give you an opportunity to be heard. There is then a mechanism of appeal. In the end, you can challenge their decision in court. The process may sometimes be unfair but at least it is transparent. You will be told why your film isn’t being allowed public screening, or why that scene needs to be cut. The Censor Board at its worst will talk to you — the film’s creator.
Under Section 95 of the Code of Criminal Procedure (CrPC), the government can ban any book, newspaper, or document but it has to do a few things to do so. First, it has to issue a public notification that it is banning a particular book. Second, the notification has to say why it is banning the book, newspaper, or document. Third, this reasoning is within the scope of well-known sections of the Indian Penal Code or IPC that pertain to free speech restrictions.
These IPC sections relate to sedition (IPC 124A), promoting enmity among groups (IPC 153A), words prejudicial to national integration, such as arguing that people of a religion should not be treated as equal citizens (IPC 153B), has obscenity (IPC 292, 293), or offending religious sentiments (IPC 295A).
These IPC sections are in themselves controversial but at least these are well-defined laws used to decide whether a book can be banned or not. And if you think the ban order is unfair or unjust, section 96 of the CrPC clearly lays out how the aggrieved party could approach a high court.
But when it comes to blocking online content, the aggrieved party (the content creator) can’t even get a copy of the government order banning their content. How does one challenge a ban when one can’t access the order banning it?
Under section 69A of the Information Technology Act, the government can keep all such orders secret, and out of the purview of the Right to Information (RTI). National security, you see. Every year the Indian government blocks a few thousand web URLs. Every year the number grows. In most cases, we don’t even know what these are, because the government can and mostly does keep these orders ‘top secret’.
The orders are sent to Internet Service Providers and to intermediary platforms such as, say, Twitter. Or a news website. Let us take a hypothetical situation whereby the government asks Twitter to block a tweet you wrote five years ago. And Twitter blocks/removes it, and doesn’t even tell you. Or a news website where you published a column 10 years ago and the government gives them an order to remove it. In such circumstances, you won’t even know you’ve been censored. Forget the whys and hows.
The problem with Section 69A
Section 69A of the IT Act violates the principles of natural justice because it is vague. Unlike CrPc 95, it doesn’t specify which laws have to be violated for the government to have the powers to block a website or app. National security. Sovereignty. So the government decides what is legal and what is illegal, on its arbitrary whims and fancies.
Section 69A does not give the aggrieved party, the person who uttered the words that are being censored, any chance to defend her or himself. It does not lay out any procedure for appeal. The government has decided you are guilty and now your voice is muzzled. One tweet the government doesn’t like, and it can order Twitter to block you out from Twitter in perpetuity as if you were Donald Trump.
In its 2005 Shreya Singhal judgment, the Supreme Court considered Section 69A, but did not agree with the petitioners that the section was ‘constitutionally infirm’. With due respect to the courts, it took a review process within the government to be good enough for due process. This due process, all takes within the government, from nodal officer to review committee. So the checks and balances are often notional.
The absence of a real due process is how even the Twitter account of a Rajya Sabha MP gets blocked. Might we ask, if these accounts are blocked on grounds of national security, why aren’t there any cases against these individuals? Not even the customary sedition FIR?
Under the rules, the government is supposed to give the intermediary at least 48 hours to reply before a blocking order is issued, if the government can identify who the intermediary is. If you host your own website and are not a big social media company, the government can pretend it couldn’t find the intermediary and order ISPs to block access to your website.
The Supreme Court judgment in Shreya Singhal case said, “If the ‘person’ i.e. the originator is identified he is also to be heard before a blocking order is passed.” That’s too much discretion given to the executive for something as important as the fundamental right to free speech. In the present controversy, did the government give a hearing to the hundreds of people whose Twitter accounts it wants permanently blocked? In fact, one has never heard of the government giving a chance to any content creator to explain why their content/platform/web channel should not be blocked.
Much of this problem would be solved if the secrecy powers were removed. Just as the government has to issue a public notification banning a book, the notifications blocking web content should be put on the government website, along with the reasons. And if we are a democracy that respects principles of natural justice, the government should issue a public notice asking the intermediary and the content creator to identify themselves, receive a notice, and have the time to reply to it. That would be a real due process. That is the very least the spirit of the Indian Constitution demands.
Shivam Vij is a contributing editor at ThePrint. Views are personal.