The following article has been authored by Devanshi Agarwal, a 3rd Year B.Com.,LL.B (Hons.) Student at the Jindal Global Law School of O. P. Jindal Global University, Sonipa, Haryana
INTRODUCTION
Section 69A of the Information Technology Act, 2000 (IT Act) empowers the Union Government to block content on the internet, when (1) the Government believes it is “necessary or expedient”, and (2) it is in the interest of the defense, sovereignty, integrity, or security of India or its relations with Foreign states, public order, or the incitement of a cognizable offense relating to these categories.[1] Since the new IT Rules went into effect, they have encountered many legal challenges. Rule 16 of the IT Rules, 2021 discusses information blocking in emergency situations.
In Shreya Singhal v Union of India[2], Section 66 of the IT Act, 2000 was declared unconstitutional for violating the constitutional guarantee of free speech under Section 19 of the Indian Constitution. Despite this, authorities continue to use Section 66 of the IT Act, 2000 to arrest and refuse bail to people who may seem remotely controversial online. Consequently, Section 69A of the IT Act, 2000 was also challenged in the Shreya Singhal Case, but was regrettably upheld on the grounds that website blocking is permitted under clause 2 of Article 19 of the Indian Constitution, which permits “reasonable restrictions” on the freedom of speech and expression. This judgment, despite being a largely beneficial one, has ignored its flaws and loopholes, of which we will be discussing further.
Rule 16(3) of the IT Rules, 2021 have been contested legally multiple times by news associations such as Digital News Publishers Association, Indian Broadcasting and Digital Foundation (IDBF) and others at the Madras and the Bombay High Courts.[3] One such instance is in an order dated January 20, 2023, where in the Government issued a ban using emergency powers under the above mentioned Rule of 16(3) of the IT Rules, 2021 and under Section 69A of the IT Act, 2000 to direct Twitter and YouTube to disable access to the BBC Documentary, India: The Modi Question, within India and prevent its re-upload. Following this ban, a PIL was filed in the Supreme Court of India against the Government’s decision to impose a ban on the said documentary, alleging that it was ‘illegal, malafide, arbitrary and unconstitutional’.[4]
JUDICIAL SCRUTINY: SHREYA SINGHAL AND BEYOND
As mentioned above, the Constitutional Validity of Section 69A was challenged and Upheld by the Supreme Court in Shreya Singhal v Union of India; the court stated that ‘blocking’ could only be done cases of security and defence of India, public order etc, which constituted reasonable restrictions under Article 19(2) of the Constitution of India. But when one reads between the lines of this flawed judgment, their reasoning fails to acknowledge the distinction between: (1) constitutional standards that state action must be tested against by courts; and (2) statutory language that sets out when the Government can’t interfere with rights.
The vagueness in the terminology of the Constitution serves as a basis for it to be challenged, for example, the constitution says ‘state interventions are constitutional in the interests of public order’, the statute says ‘the government can restrict speech in the interests of public order’ but there is no provisions or explanation as to what constitutes as public order, so stating that the Section 69A of IT Act, 2000, is constitutional on the grounds on Clause 2 of Article 19 of the constitution has no legal nexus.
The Supreme Court while deciding this case overlooked a crucial difference, that is of ‘reasonable restriction’ imposed by ‘law’ and that of ‘direction’. What Sections 69 and 69A of the IT Act effectively do is to give a government servant the power to determine the extent of an individual’s freedom of speech. This is at the heart of the problem with these sections of the law.[5] However, the Supreme Court interpreted Article 19(2) incorrectly in the Shreya Singhal case. What it did not anticipate was Parliament ceding its legislative authority.
In case of blocking powers under Section 69A of the IT Act, 2000, they are subject to ‘reasons which have to be recorded in writing so that they may be assailed in a writ petition’. However, these orders are marked ‘confidential’ and ‘secret’, then transmitted directly to service providers, making it difficult to defend and for the general public to challenge them. Therefore evidently, the issue is not just of the constitutionality of the Section concerned but also of the procedure of its applications and the battle of transparency. This was the case of Twitter v Information Technology Ministry (The Twitter Case), where the appellant argued that there is no transparency in the functioning of the MeITY, and also alleged violation of fundamental rights under Articles 19(1)(a) and 19(1)(g) along with Article 14 to challenge the action of the Central Government.[6]
RULE 16(3): THE PROCESS UNDER MICROSCOPE
Millions of users throughout India could anticipate a radical shift in how they access and use the internet if the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were implemented.
Section 69A of the IT Act should also apply to the content that has to be prohibited. The Central government may impose blocking orders on platforms under Section 69A for a variety of reasons, including the preservation of India’s sovereignty and territorial integrity, national security, cordial relations with other countries, and public order. The examination of Rule 16 addresses a broader constitutional and jurisprudential issue that extends beyond the discussion of free speech and the press in India: the administrative bodies of the executive branch have the authority to decide what poses a threat to public order. Rule 16 is devoid of oversight and protective measures, highlighting the importance of legislative entrenchment of checks and balances in a transparent oversight on Rule 16.[7]
Clause 2 of the Rule 16 in its exact wordings mentions that ‘in case of emergency nature…..without giving him an opportunity of hearing’ implied that it grants excessive power to the government to block information without following the well-established legal test of proportionality. This test, laid down in the Supreme Court judgement of Anuradha Bhasin v Union of India, requires restrictions on speech to be; (1) In pursuit of a legitimate aim, (2) necessary to achieve that aim and (3) proportionate to the aim. And by bypassing this proportionality test in emergency situations, Rule 16(3) grants the Government broad discretion to censor information, potentially stifling legitimate speech. There is also a ‘chilling-effect’ that this Rule creates on free speech, as contested by the Leaflet and Journalist Nikhil Wagle before the Bombay High Court in 2021.
CONCLUSION
Just because the government does it, it’s not legal.
~Alok Prasanna Kumar, Co-founder, Vidhi Centre for Legal Policy
This essay has argued that the broad and capricious net thrown by Section 69A of the IT Act, 2000 and Rule 16(3) of the IT Rules, 2021 restricts free speech and expression on the internet. These provisions are vulnerable to exploitation because they lack independent monitoring, procedural protections, and unambiguous definitions. This study shows how these rules are in opposition to the essential liberties protected by Articles 14, 19, and 21 of the Indian Constitution. A rights-based strategy that places a high priority on proportionality, judicial scrutiny, and openness is required to combine national security considerations with the inalienable right to free speech in the digital era. This can be accomplished by requiring explicit grounds for material removal, strengthening the self-regulatory framework for online intermediaries, and implementing tougher court scrutiny for content takedown petitions.
In addition, the absence of court supervision during the removal procedure, fosters an atmosphere that is favourable to arbitrary censorship. This study emphasizes how urgently legislation must be changed to guarantee a fair strategy that preserves the fundamentals of an open and free internet while defending public safety and security.
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[1] Vasudev Devadasan, ‘The Phantom Constitutionality of Section 69A: Part I’ (Constitutional Law and Philosophy, 22 October 2022) < https://indconlawphil.wordpress.com/2022/10/22/the-phantom-constitutionality-of-section-69a-part-i> accessed 17 April 2024
[2] Shreya Singhal v Union of India, AIR 2015 SC 1523
[3] Aihik Sur, MC Explains: The emergency provisions of IT Rules used to block BBC documentary in India (Money Control, 23 January 2023) <https://www.moneycontrol.com/news/business/mc-explains-the-emergency-provisions-of-it-rules-used-to-block-bbc-documentary-in-india-9916751.html#> accessed on 17 April 2024
[4] PIL filed in SC challenging Centre’s decision to ban BBC documentary (Economic Times Legal World, 30 January 2023)
< https://legal.economictimes.indiatimes.com/news/industry/pil-filed-in-sc-challenging-centres-decision-to-ban-bbc-documentary/97434559 > accessed on 16 April 2024
[5] Alok Prasanna Kumar, Section 69A of IT Act must also go (Deccan Herald, 25 July 2021) <https://www.deccanherald.com/opinion/section-69a-of-it-act-must-also-go-1012522.html# > accessed on 17 April 2024
[6] Twitter v Information Technology Ministry, WP No. 13710 of 2022, Karnataka High Court
[7] The Emergency Paradox: Misuse of powers under Rule 16 of the IT Rules, 2021 (Software Freedom Law Centre, 17 February 2023) < https://sflc.in/ https://sflc.in/wp-content/uploads/2023/06/annexure-5_the-emergency-paradox-misuse-of-powers-under-rule-16-of-the-it-rules-2021.pdf> accessed on 18 April 2024