At the heart of the current debate about the showdown between the Government of India and Twitter is the dubious legal structure around the Union government's web content censorship powers under India's Information Technology Act.
During the last ten days of its response to the continuing farmer protests, the Union government has issued several orders under Section 69A of the IT Act calling for several hundred handles on Twitter – along with certain whole hash-tags themselves – to be blocked.
Twitter has compiled in part with the orders, but indicated it has restored some content after initially restricting it. It has also pushed back on the government censorship orders for content relating to journalists, activists, and other public figures, stating that they believe that the government is acting beyond its powers in their regard.
But why is the legal structure for web censorship in India so controversial? And should Twitter have the power to push back on such blocking orders?
Origins of Govt’s Blocking Power Under Section 69A
The framework for the Indian government’s blocking of web content had a shaky legal beginning: The blocking of Pakistani newspaper Dawn's website in 1999 during the Kargil conflict. At the time, there was no clear legal authority to do this – or indeed much strategic thought.
This proved a beginning for occasional bursts of website blocking orders. To give itself legal cover (albeit of uncertain constitutionality), the Union Government came up with proclamations of ‘ministerial frameworks’ for this, and the issuance of website blocking gazette orders under the original Information Technology Act 2000.
Today's legal structure for web content blocking is a political result of the fallout of the 26/11 Mumbai terror attacks. In the aftermath of the attacks and the criticism of the then UPA government, further provisions were added at the last minute to the already-introduced amendment bill to the Information Technology Act in 2008.
This included the addition of Section 69A, that appeared to adapt parts of the existing legal framework for authorisation of phone-tapping, to supervise website blocking orders.
These amendments were controversially passed in the din and disruption in the houses of Parliament in the Winter Session following the 26/11 attacks. The amendment bill – with the controversial modifications moved by the government moments before it was brought back on the floor of the Lok Sabha – was passed without debate by a voice vote amidst the din of disruption by the then Opposition led by the BJP.
A Bad Situation Made Worse
In 2009, however, the Ministry of Electronics and Information Technology made that legal framework even more problematic.
It passed a set of Rules (ie delegated legislation which was not presented to Parliament) for Section 69A that created the process by which the web censorship orders would be issued.
Under these Rules, the decision and review process for web censorship rests wholly within the purview of civil servants, with no independent members or direct judicial supervision.
And even worse, the Rules – despite no authority from their parent act and in clear conflict with the Right to Information Act and judicial rulings – also said that these blocking orders would be ‘strictly confidential’. They also failed to provide a clear right for the impacted party to be heard before being censored.
The situation was already problematic under the old UPA regime. The NDA-led Union government has now doubled down on using Section 69A and the Blocking Rules to issue web censorship orders, including what are clearly prior restraints on speech by asking for results linked to certain search topics or hashtags to be blocked.
All this while, the public disclosure of these orders continues to be suppressed, even when there are no clear reasons to do so. For example, when journalist Tanul Thakur sought a copy of the notice by which his satirical website dowrycalculator.com had been blocked, the Ministry of Electronics and IT refused to provide it citing confidentiality.
A Miscalculation by the Supreme Court?
Section 69A and its rules were allowed to stand by the Supreme Court in its March 2015 Shreya Singhal judgment on the judicial assumption that abuse in the process could be tackled by individuals moving the courts to protect their rights.
Today, however, judicial review of blocking orders for web content is nearly impossible given the confidentiality provision. Why is that?
- Blocking orders are issued directly to telecom companies or internet platforms in confidential orders, with the persons whose websites or social media handles being impacted rarely, if ever, notified. And of course, the everyday citizens who may have a right to access or use the relevant web resources never get to know beyond broad press statements or online rumours.
- We do not know if the review committees for these web censorship orders actually regularly meet, leave alone whether the serving senior civil servants there conduct reasoned, robust, independent review.
- In effect, today, your online speech and expression, and the information you access on the internet, can be blocked by an order that you may never come to know about or be able to access and read.
- And if you cannot access this information or make yourself heard, then you cannot go to court or obtain a remedy for this infringement of your rights.
‘There Can be No Greater Legal Monstrosity Than a Secret Statute’
One of the core principles of constitutional law in democracies and the common law legal tradition more broadly is that an order that impacts rights must be accessible and ordinarily made publicly available. To democrats and jurists, any other approach is perverse and reeks of the despotism.
In fact, as recently as January 2020, the Supreme Court emphasised this point in the context of the government using powers to restrict the fundamental rights of Indians in the internet age.
In its Anuradha Bhasin judgment on the issue of the government’s shutdown of the internet in Jammu and Kashmir, a 3-judge bench of the Supreme Court noted that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know”.
The judges also quoted the jurist Lon Fuller to further observe that “there can be no greater legal monstrosity than a secret statute”.
In India, we know have a system of secret website censorship orders, which – as revealed due to the public fracas between Twitter and the Union Government – included directives to block the online presence of established journalists and news organisations.
And in seeking to block entire hash-tagged categories of content and not-specific instances of content, the government is mandating pre-censorship eerily similar to the secret orders to take down topics for discussion on social media, sometimes referred to as the "directives from the Ministry of Truth" that are issued in China.
An Urgent Need for Reform
Much has been made by the government that web companies should comply with any order they recieve. In fact, under the UN Guiding Principles on Business and Human Rights, ensuring the protection of human rights requires firms to ensure that their operations do not result in knowing and preventable infringement of rights.
The UN's Special Rapporteurs on Freedom of Expression have also emphasised that web platforms should review the government orders they receive and ensure that measures are lawful, including being necessary and proportionate, before censoring online speech.
And as any news sector business in India would tell you, there are directives received from a range of government agencies that require narrowing and push-back all the time – some of which end up as court cases. So why should the situation be so different for online content?
What we should take away from this is that the web censorship blocking powers and process under the present Information Technology Act is, to be quite frank, rotten and constitutionally suspect.
At the minimum, if any of this goes into litigation as a bye-product of the Union government’s dispute with Twitter, then there is good ground that the courts should reconsider the initial hope they placed in the government’s restraint, in their earlier Shreya Singhal ruling.
But perhaps at a larger level, we need to ask our elected lawmakers and public officials why web censorship orders should be regarded as acceptable in the Indian republic.
If we do believe that these troubling powers might be needed in truly exceptional circumstances, then we need to ensure they are wielded not by bureaucrats beholden to the government, but by judges and in a manner that is transparent and accountable to Parliament. And indeed, their use should be absolutely exceptional – not a regular occasion several times in the year.
(Raman Jit Singh Chima is Policy Director at Access Now, an international digital rights advocacy and policy group, and a co-founder of the Internet Freedom Foundation. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)