This post is authored by Dhruv Bhatnagar
Part I of this two part-series examined the contours of Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”), and the Bombay High Court’s rationale for refusing to stay the rule in the Leaflet case. This second part examines the legality and constitutionality of Rule 16. It argues that the rule’s constitutionality may be contested because it deprives impacted content publishers of a hearing when their content is restricted. It also argues that the MIB should provide information on blocking orders under Rule 16 to allow them to be challenged, both by users whose access to information is curtailed, and by publishers whose right to free expression is restricted.
Rule 16’s legality
At its core, Rule 16 is a legal provision granting discretionary authority to the government to take down content. Consistently, the Supreme Court (“SC”) has maintained that to be compliant with Article 14, discretionary authority must be backed by adequate safeguards. Admittedly, Rule 16 is not entirely devoid of safeguards since it envisages an assessment of the credibility of content blocking recommendations at multiple levels (refer Part I for context). But this framework overlooks a core principle of natural justice – audi alteram partem (hear the other side) – by depriving the impacted publishers of a hearing.
In Tulsiram Patel, the SC recognised principles of natural justice as part of the guarantee under Article 14 and ruled that any law or state action abrogating these principles is susceptible to a constitutionality challenge. But the SC also found that natural justice principles are not absolute and can be curtailed under exceptional circumstances. Particularly, audi alteram partem, can be excluded in situations where the “promptitude or the urgency of taking action so demands”.
Arguably, the suspension of pre-decisional hearings under Rule 16 is justifiable considering the rule’s very purpose is to empower the Government to act with alacrity against content capable of causing immediate real-world harm. However, this rationale does not preclude the provision of a post-decisional hearing under the framework of the 2021 IT Rules. This is because, as posited by the SC in Maneka Gandhi (analysed here and here), the “audi alteram partem rule is sufficiently flexible” to address“the exigencies of myriad kinds of situations…”. Thus, a post-decisional hearing to impacted stakeholders, after the immediacy necessitating the issuance of interim blocking directions had subsided, could have been reasonably accommodated within Rule 16. Crucially, this would create a forum for the State to justify the necessity and proportionality of its speech restriction to the individuals’ impacted (strengthening legitimacy) and the public at large (strengthening the rule of law and public reasoning). Finally, in the case of ex-facie illegal content, originators are unlikely to avail of post-facto hearings, mitigating concerns of a burdensome procedure.
Rule 16’s exercise by MIB
MIB has exercised its power under Rule 16 of the 2021 IT Rules on five occasions. Collectively, it has ordered the blocking of approximately 93 YouTube channels, 6 websites, 4 Twitter accounts, and 2 Facebook accounts. Each time, MIB has announced content blocking only through press releases after theorders were passed but has not disclosed the actual blocking orders.
MIB’s reluctance to publish its blocking orders renders the manner it is exercising power under Rule 16 opaque. Although press statements inform the public that content has been blocked, blocking orders are required (under Rule 16(2) and Rule 16(4)) to record the reasons for which the content has been blocked. As discussed above, this limits the right to free expression of the originators of the content and denies them the ability to be heard.
Additionally, content recipients, whose right to view content and access information is curtailed through such orders, are not being made aware of the existence of these orders by the Ministry directly. Pertinently, the 2021 IT Rules appear to recognise the importance of informing users about the reasons for blocking digital content. This is evidenced by Rule 4(4), which requires ‘significant social media intermediaries’ to display a notice to users attempting to access proactively disabled content. However, in the absence of similar transparency obligations upon MIB under the 2021 IT Rules, content recipients aggrieved by the Ministry’s blocking orders may be compelled to rely on the cumbersome mechanism under the Right to Information Act, 2005 to seek the disclosure of these orders to challenge them.
Although the 2021 IT Rules do not specifically mandate the publication of blocking orders by MIB, this obligation can be derived from the Anuradha Bhasin verdict. Here, in the context of the Telecom Suspension Rules, the SC held that any order affecting the “lives, liberty and property of people” must be published by the government, “regardless of whether the parent statute or rule prescribes the same”. The SC also held that the State should ensure the availability of governmental orders curtailing fundamental rights unless it claims specific privilege or public interest for refusing disclosure. Even then, courts will finally decide whether the State’s claims override the aggrieved litigants’ interests.
Considering the SC’s clear reasoning, MIB ought to make its blocking orders readily available in the interest of transparency, especially since a confidentiality provision restricting disclosure, akin to Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”), is absent in the 2021 IT Rules.
Another concerning trend is MIB’s invocation of its emergency content-blocking power as the norm rather than the exception it was meant to be. For context, the 2021 IT Rules provide a non-emergency blocking process under Rules 14 and 15, whereunder impacted publishers are provided a pre-decisional hearing before an Inter-Departmental Committee required to be constituted under Rule 13(1)(b). However, thus far, MIB has exclusively relied on its emergency power to block ostensibly problematic digital content, including fake news.
While the Bombay High Court in the Leaflet case declined to expressly stay Rule 14 (noting that the Inter-Departmental Committee was yet to be set up) (¶19), the High Court’s stay on Rule 9(3) creates a measure of ambiguity as to whether Rules 14 and 15 are currently in effect. This is because Rule 9(3) states that there shall be a government oversight mechanism to “ensure adherence to the Code of Ethics”. A key part of this mechanism is the Inter-Departmental Committee whose role is to decide “violation[s] or contravention[s] of the Code of Ethics” (Rule 14(2)). The High Court even notes that it is “incomprehensible” how content may be taken down under Rule 14(5) for violating the Code of Ethics (¶27). Thus, despite the Bombay High Court’s refusal to stay Rule 14, it is arguable that the High Court’s stay on the operation of Rule 9(3) to prevent the ‘Code of Ethics’ from being applied against online news and curated content publishers, may logically extend to Rule 14(2) and 15. However, even if the Union were to proceed on a plain reading of the Leaflet order and infer that the Bombay High Court did not stay Rules 14 and 15, it is unclear if the MIB has constituted the Inter-Departmental Committee to facilitate non-emergency blocking.
MeitY has also liberally invoked its emergency blocking power under Rule 9 of the 2009 Blocking Rules to disable access to content. Illustratively, in early 2021 Twitter received multiple blocking orders from MeitY, at least two of which were emergency orders, directing it to disable over 250 URLs and a thousand accounts for circulating content relating to farmers’ agitation against contentious farm laws. Commentators have also pointed out that there are almost no recorded instances of MeitY providing pre-decisional hearings to publishers under the 2009 Blocking Rules, indicating that in practice this crucial safeguard has been rendered illusory.
Evidently, there is a need for the MIB to be more transparent when invoking its emergency content-blocking powers. A significant step forward in this direction would be ensuring that at least final blocking orders, which ratify emergency blocking directions, are made readily available, or at least provided to publishers/originators. Similarly, notices to any users trying to access blocked content would also enhance transparency. Crucially, these measures would reduce information asymmetry regarding the existence of blocking orders and allow a larger section of stakeholders, including the oft-neglected content recipients, the opportunity to challenge such orders before constitutional courts.
Additionally, the absence of hearings to impacted stakeholders, at any stage of the emergency blocking process under Rule 16 of the 2021 IT Rules limits their right to be heard and defend the legality of ‘at-issue’ content. Whilst the justification of urgency may be sufficient to deny a pre-decisional hearing, the procedural safeguard of a post-decisional hearing should be incorporated by MIB.
The aforesaid legal infirmities plague Rule 9 of the 2009 Blocking Rules as well, given its similarity with Rule 16 of the 2021 IT Rules. The Tanul Thakur case presents an ideal opportunity for the Delhi High Court to examine and address the limitations of these rules. Civil society organisations have for years advocated (here and here) for incorporation of a post-decisional hearing within the emergency blocking framework under the 2009 Blocking Rules too. Its adoption and diligent implementation could go a long way in upholding natural justice and mitigating the risk of arbitrary content blocking.
 State of Punjab v. Khan Chand, (1974) 1 SCC 549; Virendra v. The State of Punjab & Ors., AIR 1957 SC 896; State of West Bengal v. Anwar Ali, AIR 1952 SC 75.