On 6 June 2022, the Ministry of Electronics and Information Technology (“MeitY”), released the proposed amendments for Part 1 and Part II of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”). CCG submitted its comments on the proposed amendments to the 2021 IT Rules, highlighting its key feedback and key concerns. The comments were authored by Vasudev Devadasan and Bilal Mohamed and reviewed and edited by Jhalak M Kakkar and Shashank Mohan.
The 2021 IT Rules were released in February last year, and Part I and II of the Guidelines set out the conditions intermediaries must satisfy to avail of legal immunity for hosting unlawful content (or ‘safe harbour’) under Section 79 of the Information Technology Act, 2000 (“IT Act”). The 2021 IT Rules have been challenged in several High Courts across the country, and the Supreme Court is currently hearing a transfer petition on whether these actions should be clubbed and heard collectively by the apex court. In the meantime, the MeitY has released the proposed amendments to the 2021 IT Rules which seek to make incremental but significant changes to the Rules.
CCG’s comments to the MeitY can be summarised as follows:
Dilution of safe harbour in contravention of Section 79(1) of the IT Act
The core intention behind providing intermediaries with safe harbour under Section 79(1) of the IT Act is to ensure that intermediaries do not restrict the free flow of information online due to the risk of being held liable for the third-party content uploaded by users. The proposed amendments to Rules 3(1)(a) and 3(1)(b) of the 2021 IT Rules potentially impose an obligation on intermediaries to “cause” and “ensure” their users do not upload unlawful content. These amendments may require intermediaries to make complex determinations on the legality of speech and cause online intermediaries to remove content that may carry even the slightest risk of liability. This may result in the restriction of online speech and the corporate surveillance of Indian internet users by intermediaries. In the event that the proposed amendments are to be interpreted as not requiring intermediaries to actively prevent users from uploading unlawful content, in such a situation, we note that the proposed amendments may be functionally redundant, and we suggest they be dropped to avoid legal uncertainty.
Concerns with Grievance Appellate Committee
The proposed amendments envisage one or more Grievance Appellate Committees (“GAC”) that sit in appeal of intermediary determinations with respect to content. Users may appeal to a GAC against the decision of an intermediary to not remove content despite a user complaint, or alternatively, request a GAC to reinstate content that an intermediary has voluntarily removed or lift account restrictions that an intermediary has imposed. The creation of GAC(s) may exceed Government’s rulemaking powers under the IT Act. Further, the GAC(s) lack the necessary safeguards in its composition and operation to ensure the independence required by law of such an adjudicatory body. Such independence and impartiality may be essential as the Union Government is responsible for appointing individuals to the GAC(s) but the Union Government or its functionaries or instrumentalities may also be a party before the GAC(s). Further, we note that the originator, the legality of whose content is at dispute before a GAC, has not expressly been granted a right to hearing before the GAC. Finally, we note that the GAC(s) may lack the capacity to deal with the high volume of appeals against content and account restrictions. This may lead to situations where, in practice, only a small number of internet users are afforded redress by the GAC(s), leading to inequitable outcomes and discrimination amongst users.
Concerns with grievance redressal timeline
Under the proposed amendment to Rule 3(2), intermediaries must acknowledge the complaint by an internet user for the removal of content within 24 hours, and ‘act and redress’ this complaint within 72 hours. CCG’s comments note that 72-hour timeline to address complaints proposed by the amendment to Rule 3(2) may cause online intermediaries to over-comply with content removal requests, leading to the possible take-down of legally protected speech at the behest of frivolous user complaints. Empirical studies conducted on Indian intermediaries have demonstrated that smaller intermediaries lack the capacity and resources to make complex legal determinations of whether the content complained against violates the standards set out in Rule 3(1)(b)(i)-(x), while larger intermediaries are unable to address the high volume of complaints within short timelines – leading to the mechanical takedown of content. We suggest that any requirement that online intermediaries address user complaints within short timelines could differentiate between types of content that are ex-facie (on the face of it) illegal and causes severe harm (e.g., child-sex abuse material or gratuitous violence), and other types of content where determinations of legality may require legal or judicial expertise, like copyright or defamation.
Need for specificity in defining due diligence obligations
Rule 3(1)(m) of the proposed amendments requires intermediaries to ensure a “reasonable expectation of due diligence, privacy and transparency” to avail of safe harbour; while Rule 3(1)(n) requires intermediaries to “respect the rights accorded to the citizens under the Constitution of India.” These rules do not impose clearly ascertainable legal obligations, which may lead to increased compliance burdens, hamper enforcement, and results in inconsistent outcomes. In the absence of specific data protection legislation, the obligation to ensure a “reasonable expectation of due diligence, privacy and transparency” is unclear. The contents of fundamental rights obligations were drafted and developed in the context of citizen-State relations and may not be suitable or aptly transposed to the relations between intermediaries and users. Further, the content of ‘respecting Fundamental Rights’ under the Constitution is itself contested and open to reasonable disagreement between various State and constitutional functionaries. Requiring intermediaries to uphold such obligations will likely lead to inconsistent outcomes based on varied interpretations.
On May 11, 2022, the Supreme Court issued a consequential interim order (“Order”) in a batch of petitions challenging Section 124A of the Indian Penal Code, 1860 (“IPC”), which penalises the offence of ‘sedition’. The Order grants the Central Government time to re-examine the validity of Section 124A, and whilst this process is underway, effectively suspends the provision’s operation through these directions:
it is “hop[ed] and expect[ed]” that the Central and State Governments will refrain from registering fresh ‘first information reports’, continuing investigations, and taking coercive measures under Section 124A;
persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
pending legal proceedings relating to sedition are to be kept in abeyance. However, proceedings under other penal laws can continue if no prejudice is caused to the accused.
After briefly explaining the offence of sedition and summarising the facts leading up to the current constitutional challenges, this post analyses the Order along three lines – its impact on fundamental rights; relevance for persons facing prosecution and incarceration for sedition; and possible hurdles to its effective implementation.
Section 124A’s constitutionality was tested in 1962 by a five-judge bench (i.e., a constitution bench) of the Supreme Court in Kedar Nath Singh (analysed here). The provision was declared valid since it was enacted “in the interest of… public order” (¶26). Acknowledging that a broad (or arguably even plain) interpretation of the offence may constitute an unreasonable restriction on free speech under Article 19(2), the Supreme Court limited Section 124A’s applicability to activities inciting violence or having the “tendency to create public disorder…” (¶27). Constitutional law scholars have pointed out that the Supreme Court’s interpretation of Section 124A in Kedar Nath is inconsistent with the provision’s text, which remains overbroad. This interpretative gap has been suggested as a reason for the provision’s misapplication.
Against the backdrop of a sharp increase in the registration of sedition cases, several petitioners, challenged the constitutionality of Section 124A before the Supreme Court in 2021. Multiple petitioners (here and here) argued that:
Kedar Nath was incorrectly decided because the Supreme Court overlooked the legal standard to legitimately curb speech under Article 19(2). As espoused in Ram Manohar Lohia (decided two years earlier in 1960, analysed here), this standard was a “proximate relationship” (¶13) between speech and apprehended public disorder, not a mere “tendency to create public disorder” (¶27, Kedar Nath).
Section 124A is inconsistent with later Supreme Court decisions on free speech, including the seminal Shreya Singhal ruling (analysed here) wherein it was held that only incitement to public disorder, and not mere advocacy or discussion a particular cause can be curbed by law.
Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
Section 124A’s broadness violates India’s international law commitments, particularly under Article 19 of the ICCPR, requiring restrictions on the freedom of expression to be necessary and unambiguous.
These petitions were heard by different three-judge benches of the Supreme Court. However, as Section 124A’s constitutionality was upheld by five judges in Kedar Nath, according to the larger bench rule, only a constitution bench having a minimum of seven judges can invalidate Section 124A after conclusively overruling Kedar Nath. Thus, the preliminary question before the bench that passed the Order, comprising of Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, was whether to refer the present-day challenges to a larger bench. The petitions were heard over the course of about a year:
Impact on fundamental rights
The Supreme Court’s intention to prevent unjustified curtailment of fundamental rights through the frequent use of Section 124A is both laudable and clearly represented in its Order. To this end, the Court’s first direction restraining the registration of fresh sedition cases is particularly significant. However, the deferential language used here (“We hope and expect…”) leaves room for ambiguity because:
As pointed out by a commentator, legally even softly worded requests in judicial orders must be mandatorily followed. However, the language used in the Order may create needless confusion regarding the binding nature of the Supreme Court’s direction amongst authorities required to abide by it, potentially hampering compliance. Pertinently, despite the purpose of this direction being to restrain Section 124A’s invocation, the word ‘stay’ is conspicuously absent. This contrasts with the univocal language previously used by the Supreme Court to stay the operation of contentious farm laws. Given the significance of this direction, the Supreme Court could have phrased the Order in clearer terms.
Admittedly, the absence of blanket top-down directions affords the State and lower courts discretion to evaluate situations on a case-to-case basis. However, the Supreme Court’s deference towards the State in operationalising its well-intentioned directions may not be beneficial given the periodic application of Section 124A, particularly in recent years. According to the online publication Article 14, there has been a 28% increase in sedition cases between 2014 and 2020, several of which were registered simply for criticising governments and politicians.
Additionally, the Supreme Court’s failure to record detailed reasons justifying its directions dilutes the Order’s precedential value. Had the Supreme Court provided legal reasoning for arriving at its “prima facie opinion” that Section 124A was unconstitutional – such as the provision’s vagueness or incompatibility with subsequent free speech standards – the Order could have been relied upon to buttress similar arguments in cases where other ambiguous penal laws have been challenged. Absent reasons, however, the Order remains highly contextual and neither clarifies nor expands India’s free speech protections.
Admittedly, the Supreme Court’s reluctance to elaborate on its reasons in the Order may be defensible since this was only an interim pronouncement and not a final verdict that reconsidered Section 124A’s constitutionality. However, a reasoned judgment conclusively invalidating Section 124A (as opposed to a government amendment or repeal) would have had a far more enduring impact on Indian free speech jurisprudence. The benefits of such a verdict could have been considered by the Supreme Court before granting the Government’s request for time to re-evaluate the validity of this offence. In light of the Supreme Court’s observations against Section 124A in the Order, it is hoped that the Court will consider issuing a detailed judgment disposing these challenges and conclusively striking-down Section 124A, in case the provision is not repealed by the Government within a reasonable duration.
Relevance for accused persons
The Order provides a strong basis for persons facing prosecution and incarceration for sedition to seek the suspension of legal proceedings and bail. This is evidenced by the Rajasthan High Court’s order directing the state police not to investigate sedition allegations against journalist Aman Chopra because of the Order, and a similar pronouncement by the Kerala High Court staying sedition proceedings against filmmaker Aisha Sultana.
However, for those charged with other offences in addition to sedition, especially under specialised penal statutes like the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), grant of bail is still subject to the stringent conditions prescribed in these statutes. For instance, under Section 43D(5) of the UAPA, bail can be denied if the presiding court is satisfied that the prosecution’s allegations are “prima facie true”. While interpreting this provision in its Watali verdict (analysed here and here), the Supreme Court prohibited a detailed examination of even the prosecution’s evidence for deciding bail pleas, making it far easier to establish a prima facie case and significantly harder for the accused to be granted bail.
Research by Article 14 suggests that in nearly 60% of sedition cases filed between 2010 to 2020, offences from other statutes, including the UAPA and the Information Technology Act, 2000 (“IT Act”), have been invoked alongside sedition. For individuals accused of more than just sedition, including journalist Siddique Kappan who is still in jail on charges under the UAPA, suspension of sedition alone might not bring much reprieve unless it is accompanied by wider reforms or stronger protections by courts.
Challenges in implementation
For effective implementation, the Order would have to be promptly communicated to grassroots-level law enforcement authorities spanning over 16,955 police stations. This is an uphill task considering India lacks a standardised framework for communicating judicial orders on constitutional issues to concerned authorities. The lack of such a framework has been cited by digital rights advocates as the primary reason behind the repeated invocation of the unconstitutional Section 66A of the IT Act, despite its invalidation in Shreya Singhal.
Given this context, the Supreme Court should have considered developing an ad hoc mechanism for ensuring compliance with its Order. It could potentially have directed concerned governments to communicate the Order to law enforcement authorities and to file compliance affidavits. Previously, in Prakash Singh v. UoI (analysed here), the filing of such affidavits was ordered to ensure adherence to the Supreme Court’s suggested police reforms.
Although the Supreme Court’s Order will likely bring some reprieve to persons facing sedition charges, unfortunately, the Order has limited precedential value given the lack of detailed legal reasoning. Further, the Supreme Court’s direction restraining registration of fresh sedition cases, though binding, should have been worded clearly to avoid ambiguity regarding its mandatory nature. Lastly, in the absence of a framework for communicating the Order to law enforcement authorities, implementing it would be challenging. As a mitigant, petitioners may consider requesting the Supreme Court to direct concerned governments to expeditiously communicate the Order to law enforcement authorities across the country and subsequently file affidavits demonstrating compliance.
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 reliedon its emergency power to block ostensibly problematic digital content, including fake news.
While the Bombay High Court in the Leaflet casedeclined 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.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”) were challenged before several High Courts (refer here and here) almost immediately after their promulgation. In one such challenge, initiated by the publishers of the online news portal ‘The Leaflet’, the Bombay High Court, by an order dated August 14, 2021, imposed an interim stay on the operation of Rules 9(1) and (3) of the 2021 IT Rules. Chiefly, this was done because these provisions subject online news and curated content publishers to a vaguely worded ‘code of ethics’, adherence to which would have had a ‘chilling effect’ on their freedom of speech. However, the Bombay High Court refused to stay Rule 16 of these rules, which empowers the Ministry of Information and Broadcasting (“MIB”) to direct blocking of digital content during an “emergency” where “no delay is acceptable”.
Part I of this two-part series, examines the contours of Rule 16 and argues that the Bombay High Court overlooked the procedural inadequacy of this rule when refusing to stay the provision in the Leaflet case. Part II assesses the legality and constitutionality of the rule.
Overview of Rule 16
Part III of the 2021 IT Rules authorises the MIB to direct blocking of digital content in case of an ‘emergency’ in the following manner:
The MIB has correctly noted that Rule 16 is modelled after Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”) (analysed here), and confers upon the MIB similar emergency blocking powers which the Ministry of Electronics and Information Technology (“MeitY”) has possessed since 2009. Both provisions confer discretion upon authorised officers to determine what constitutes an emergency but fail to provide a hearing to impacted publishers or intermediaries at any stage.
Judicial findings on Rule 16
The Bombay High Court’s order in the Leaflet case is significant since it is the first time a constitutional court has recorded its preliminary findings on the rule’s legitimacy. Here, the Bombay High Court refused to stay Rule 16 primarily for two reasons. First, the High Court held that Rule 16 of the 2021 IT Rules is substantially similar to Rule 9 of the 2009 Blocking Rules, which is still in force. Second, the grounds upon which Rule 16 permits content blocking are coextensive with the grounds on which speech may be ‘reasonably restricted’ under Article 19(2) of the Indian Constitution. Respectfully, the plausibility of this reasoning is contestable:
Equivalence with the 2009 Blocking Rules: Section 69A of the IT Act and the 2009 Blocking Rules were previously challenged in Shreya Singhal, where both were upheld by the Supreme Court (“SC”). However, establishing an equivalence between Rule 16 of the 2021 IT Rules and Rule 9 of the 2009 Blocking Rules to understand the constitutionality of the former would have been useful only if Shreya Singhal contained a meaningful analysis of Rule 9. However, the SC did not examine this rule but rather broadly upheld the constitutionality of the 2009 Blocking Rules as a whole due to the presence of certain safeguards including: (a) the non-emergency process for content blocking under the 2009 Blocking Rules includes a pre-decisional hearing to identified intermediaries/originators before content was blocked; and (b) the 2009 Blocking Rules mandate the recording of reasons in blocking orders so that they may be challenged under Article 226 of the Constitution
However, the SC did not consider that the emergency blocking framework under Rule 9 of the 2009 Blocking Rules not only allows MeitY to bypass the essential safeguard of a pre-decisional hearing to impacted stakeholders but also fails to provide them with either a written order or a post-decisional hearing. It also did not address that Rule 16 of the 2009 Blocking Rules, which mandates confidentiality of blocking requests and subsequent actions, empowers MeitY to refuse disclosure of blocking orders to impacted stakeholders thus depriving them of the opportunity to challenge such orders.
Thus, the Bombay High Court’s attempt in the Leaflet case to claim equivalence with Rule 9 of the 2009 Blocking Rules as a basis to defend the constitutionality of Rule 16 of the 2021 IT Rules was inapposite since Rule 9 itself was not substantively reviewed in Shreya Singhal, and its operation has since been challenged on constitutional grounds.
Procedural safeguards: Merely because Rule 16 of the 2021 IT Rules permits content blocking only under the circumstances enumerated under Article 19(2), does not automatically render it procedurally reasonable. In People’s Union of Civil Liberties (“PUCL”) the SC examined the procedural propriety of Section 5(2) of the Telegraph Act, 1885, which permits phone-tapping. Even though this provision restricts fundamental rights only on constitutionally permissible grounds, the SC found that substantive law had to be backed by adequate procedural safeguards to rule out arbitrariness. Although the SC declined to strike down Section 5(2) in PUCL, it framed interim guidelines to govern the provision’s exercise to compensate for the lack of adequate safeguards.
Since Rule 16 restricts the freedom of speech, its proportionality should be tested as part of any meaningful constitutionality analysis. To be proportionate, restrictions on fundamental rights must satisfy four prongs: (a) legality – the requirement of a law having a legitimate aim; (b) suitability – a rational nexus between the means adopted to restrict rights and the end of achieving this aim, (c) necessity – proposed restrictions must be the ‘least restrictive measures’ for achieving the aim; and (d) balancing – balance between the extent to which rights are restricted and the need to achieve the aim. Justice Kaul’s opinion in Puttaswamy (9JB)also highlights the need for procedural safeguards against the abuse of measures interfering with fundamental rights (para 70 Kaul J).
Arguably, by demonstrating the connection between Rule 16 and Article 19(2), the Bombay High Court has proven that Rule 16 potentially satisfies the ‘legality’ prong. However, even at an interim stage, before finally ascertaining Rule 16’s constitutionality by testing it against the other proportionality parameters identified above, the Bombay High Court should have considered whether the absence of procedural safeguards under this rule merited staying its operation.
For these reasons, the Bombay High Court could have ruled differently in deciding whether to stay the operation of Rule 16 in the Leaflet case. While these are important considerations at the interim stage, ultimately the larger question of constitutionality must be addressed. The second post in this series will critically examines the legality and constitutionality of Rule 16.
While the Information Technology (Intermediary Guidelines), 2011 applied solely to intermediaries, the 2021 Rules cover both intermediaries and publishers of digital content, including OTT platforms (that fall under ‘publisher of online curated content). At the outset, the departure from utilising existing legislations such as the Cinematograph Act, 1952, or the Cable Television Networks (Regulation) Act, 1955, and invoking the IT Act to regulate publishers of film and television is curious. The aforementioned Bombay High Court judgement addressed this, observing that fields which stood occupied by independent legislations could not possibly be brought within the purview of the 2021 Rules.
This blog will first set out how the 2021 Rules are applicable to OTT platforms. Second, it will examine whether the regulatory mechanisms conceived by the 2021 Rules provide unduly broad censorial powers to the Central Government, potentially threatening free speech and expression guaranteed by the Indian Constitution.
The 2021 Rules and OTT Platforms In February 2019, the Ministry of Electronics and Information Technology (‘MeitY’) told the Delhi High Court that the IT Act already provided stringent provisions for website blocking (under Section 69A) in case of illegal content on OTT Platforms and therefore, no mandamus could be issued to the Centre for framing general guidelines or separate provisions for OTT content. However, in February 2021, amidst rising controversies revolving around various shows, the Centre notified the 2021 Rules, Part III of which is titled “Code of Ethics and Procedure and Safeguard in Relation to Digital/Online Media”.
Rule 2(u) of the 2021 Rules defines “publisher of online curated content” as any publisher who makes available to users, on demand, audio-visual content (that is owned or licensed by the publisher) via a computer resource over the internet. OTT platforms such as Netflix, Amazon Prime Video, and Disney+Hotstar squarely fall within the ambit of such ‘publishers of online curated content’. Under Rule 8(2) of the 2021 Rules, such publishers are bound by Part III of the 2021 Rules, while Rule 9 requires such publishers to adhere to the ‘Code of Ethics’ found in the Appendix to the 2021 Rules. This Code lays down five broad principles, ranging from age classification of content to exercising due caution and discretion while depicting India’s multi-cultural background.
Perhaps the most salient feature of Part III is its three-tier structure for redressal of grievances against content, which is applicable to both publishers of news and current affairs and publishers of online curated content. Any complaints that a publisher’s content violates the Code of Ethics or that the publisher is in breach of any rule in Part III of the 2021 Rules are addressed through the following structure:
Beyond the 2021 Rules, there will also be an establishment of an “Online Grievance Portal” by the Ministry of Information & Broadcasting (‘MIB’) where any person who objects to the content of a publisher can register their grievance. This grievance will be electronically directed to the publisher, the Ministry, as well as the self-regulating body.
The impact of the 2021 Rules Films released in theatres in India are subjected to pre-certification from the Central Board of Film Certification (‘CBFC’) as per the Cinematograph Act, 1952, and television programmes are governed as per the Cable Television Network (Regulation) Act, 1995. However, OTT platforms, till now, escaped the scrutiny of the law due to an absence of clarity as to which Ministry would regulate them, i.e., the MietY or the MIB. The matter was resolved in November 2020 when the Government of India (Allocation of Business) Rules, 1961 were amended to include “Films and Audio-Visual programmes made available by online content providers” within the ambit of the MIB.
Overregulation and independent regulatory bodies The 2021 Rules pose a danger of overregulation vis-a-vis OTT platforms; they promote self-censorship and potentially increase government oversight over digital content. Beginning with the second-tier of the mechanism established by the 2021 Rules, it requires a self-regulatory body to be set up which is to be headed by a Supreme Court or High Court Judge, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other field; the members of this body, not exceeding six, are experts from various fields. Rule 12(3) dictates that the self-regulating body, after constitution, needs to register itself with the MIB. However, this registration is predicated upon the subjective satisfaction of the MIB that the body has been constituted according to Rule 12(2) and has agreed to perform functions laid down in sub-rules (4) and (5), which effectively hinders the independence of the body as the Rules fail to circumscribe the discretion that can be exercised by MIB in refusing registration to the body.
This self-regulating body can sit in appeal as well as issue guidance or advisories to the publishers, including requiring the issuance of apologies or inclusion of warning cards by publishers. However, decisions pertaining to the need to take action to delete or modify content, or instances where the publisher fails to comply with guidance or advisories of the body, are to be referred to the Oversight Mechanism under Rule 13 [Rules 12(5)(e) and 12(7)].
Additional concerns arise at Level III – the Oversight Mechanism under Rule 13. This Oversight Mechanism requires the MIB to form an Inter-Departmental Committee (‘IDC’), which shall consist of representatives from various other Ministries; the Chairperson
of this Committee is an Authorised Officer appointed by the MIB. Rule 14(2) stipulates that the Committee shall meet periodically to hear complaints arising out of grievances with respect to decisions taken at Level I or II, or complaints referred to it directly by the MIB. This may pose certain challenges — as the IDC, which is constituted and chaired by the MIB, and consists of individuals from other Ministries, will effectively also preside over complaints referred to it by the MIB. Furthermore, the recommendations of the IDC are made to the MIB itself for issuance of appropriate orders and directions for compliance. This has the potential to create a conflict of interest, and it violates the principle of natural justice that one cannot be a judge in their own case.
A bare perusal of the functions of Level II and Level III portrays that the powers bestowed upon the self-regulating body and the IDC overlap to a great extent. The self-regulating body may be rendered irrelevant as decisions regarding modification or removal of content or punishment of the publisher for failure to comply rest with the IDC. As the IDC is constituted by the MIB and its recommendations are referred to the MIB for issuance of orders to the publishers, for all intents and purposes, the Central Government has the final say in the online content that can be published by OTT platforms. This may make publishers wary and could have a chilling effect on freedom of speech and expression as content unfavourable to or critical of the government in power may be referred to the IDC/MIB and blocked.
The IDC has considerable discretion when it comes to its position as an Appellate Authority. More importantly, Rule 16 allows the Authorised Officer to block content under Section 69A of the IT Act in any case of emergency may have potential for misuse. To confer upon one individual appointed by the MIB the power to block content, without providing an opportunity for hearing to the publisher, is excessive and does not provide sufficient procedural safeguards; an issue that had been glossed over by the Supreme Court while upholding the constitutionality of Section 69A and Information Technology (Blocking Rules), 2009, in Shreya Singhal v Union of India.
In Hiralal M. Shah v The Central Board of Film Certification, Bombay, an order of the Joint Secretary to the Government of India directing a Marathi feature film to not be certified for public exhibition was challenged andthe Bombay High Court held that the Joint Secretary was not qualified to judge the effects of the film on the public, nor did he have the experience in examination of films. The High Court observed that allowing a bureaucrat to sit in judgement over the same would make “a mockery of the substantive right of appeal conferred on the producer”. According to the Court, it was difficult to comprehend why an informed decision by an expert body, i.e. the Film Certification Appellate Tribunal constituted under the Cinematograph Act, 1952, was to be replaced with the moral standards of a bureaucrat. A similar mechanism for regulation is being constructed by way of the 2021 Rules.
The three-tier mechanism stipulated by the 2021 Rules also raises the query as to why OTT platforms need to be regulated under the IT Act in the first place. If regulation is required, instead of adverting to the IT Act or the Cinematograph Act, 1952, which regulates traditional media, the regulatory system envisaged under the Cinematograph Act can be emulated to some extent in an alternate legislation solely governing OTT platforms. While the Cinematograph Act may be inadequate in terms of regulating new media, the current IT Rules stretch the boundaries of rule-making power of the Parliament by delving into an area of regulation that is not permissible under the IT Act.
The 2021 Rules are subordinate legislation, and it remains contested whether Part III of the Rules could have been promulgated using the rule-making power conferred on the Central Government under the IT Act. In the case of State of Tamil Nadu v P. Krishnamoorthy, the Supreme Court held that delegated legislation could be challenged if there was failure to conform to the statute under which it was made or if it exceeded the limits of authority conferred by the enabling Act, or if there was manifest arbitrariness or unreasonableness (to an extent where the Court may say that the legislature never intended to give authority to make such rules). With respect to the 2021 Rules, when such broad and arbitrary powers are being conferred on entities which could restrict fundamental rights under Articles 19(1)(a) and 19(1)(g), it should stem from a parent Act that lays down the objective and purpose that drives such regulation. The IT Act only regulates content to the extent of specific offences under Sections 66F, 67, 67A, 67B etc. that are to be judicially assessed, and Section 79 lays down guidelines that must be followed by intermediaries to avail of safe harbour. However, by introducing a distinct class of entities that must adhere to “digital media ethics” and must constitute their own regulation bodies, there is prima facie overreach by the 2021 Rules.
Are the IT Rules Violative of the Constitutional Rights of Free Speech and Expression? The three-tier mechanism under the 2021 Rules may have a chilling effect on creators and producers who may be disincentivized from publishing and distributing content that could potentially be considered offensive to even a small section of society. For example, even in absence of the 2021 Rules, the makers of Tandav agreed to make voluntary cuts and tendered an apology. Similarly, despite the partial stay of the 2021 Rules by the High Courts of Bombay and Madras, OTT platforms have stated that they will play it safe and exercise restraint over potentially controversial content. After the 2021 Rules, criticism that offends the sensibilities of an individual could potentially result in a grievance under Part III, ultimately leading to content being restricted.
In addition to this, the Code of Ethics appended to Part III states that a publisher shall “exercise due caution and discretion” in relation to content featuring the activities, beliefs, practices, or views of any racial or religious group. This higher degree of responsibility, which is ambiguous, may restrict the artistic expression of OTT Platforms. In Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the IT Act, holding that “where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable”. By stating that the Constitution did not permit the legislature “to set a net large enough to catch all possible offenders and leave it to the Court to step in and decide who could be held guilty”, the Supreme Court decisively ruled that a law which is vague would be void. Although a breach of the 2021 Rules does not have penal consequences, the Code of Ethics utilises open-ended, broad language whose interpretation could confer excessive discretion on the IDC in deciding what content to remove.
Under India’s constitutional structure, free expression can only be limited to the extent prescribed by Article 19(2), and courts scrutinise any restrictions of expression stringently due to the centrality of free speech and expression to the continued maintenance of constitutional democracy. In S. Rangarajan v P. Jagivan Ram, the Supreme Court observed that the medium of a movie was a legitimate mode to address issues of general concern. Further, the producer had the right to ‘think out’ and project his own message despite the disapproval of others; “it is a part of democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies”. The Apex Court further stated that it was the duty of the State to protect the freedom of expression. In K.A. Abbas v Union of India, the Supreme Court upheld the constitutionality of censorship under the Cinematograph Act, but cautioned that the censorship could only be in the interest of society, and that if it ventured beyond this arena, it could be questioned on the ground that a legitimate power was being misused.
In the aforementioned cases, the courts, while upholding censorship guidelines, acknowledged that the same had to be grounded within the four corners of Article 19(2), and the standard for censorship had to be that of an ordinary individual of common sense and prudence, and not that of a hypersensitive individual. However, in recent times, there have been regular outcries against films and web series which may offend the sensitivities of the certain sections of the public. It must be noted that the Government also has a duty to protect the speakers of unpopular opinions, and restrictions on the freedom of speech must only be a last resort when the situations provided for in Article 19(2) (e.g., public order or security of the State) are at stake. Such an approach would help allay the concerns of publishers who may otherwise either resist from creating content that could be potentially controversial or remove or modify scenes.
Conclusion A mechanism that risks the overregulation of content on OTT platforms, as well as grants significant discretion to the Ministry by way of formation of the IDC has the potential to dilute constitutional rights. Further, with India’s burgeoning influence as a producer of cultural content, such a rigid and subjective manner of regulation inhibits artistic expression and may have a chilling effect on the exercise of free speech and expression. Publishing of content on OTT platforms is different from traditional broadcasting in the way that it is made available to the public. Streaming of content on OTT platforms is based on an ‘on-demand’ principle where viewers actively choose the content they wish to consume, and thus it may require specialised regulation. A balanced approach should be adopted for regulation of OTT platforms which adhere to the values embedded in the Constitution as well as guidelines envisioned by the Supreme Court in judgements discussed above.
This blog was written with the support of the Friedrich Naumann Foundation for Freedom.
About the Author: The author is a 2021 graduate of National Law University, Delhi. She is currently working as a Research Associate with the Digital Media Content Regulatory Council.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Tejaswita Kharel, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you agree with the Supreme Court’s pronouncement in Anuradha Bhasin that access to the internet is an enabler of other rights, but not a fundamental right in and of itself? Why/why not? Assuming for the sake of argument, that access to the internet is a fundamental right (as held by the Kerala High Court in Faheema Shirin), would the test of reasonableness of restrictions be applied differently, i.e. would this reasoning lead to a different outcome on the constitutionality (or legality) of internet shutdowns?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
Although it did little to hold the government accountable for its actions in Kashmir, it would be incorrect to say that the judgment of Anuradha Bhasin v. The Union of India is a complete failure. This reflection paper evaluates the lessons learnt from Anuradha Bhasin and argues in favour of access to the internet as a fundamental right, especially in light of the COVID-19 pandemic.
EXAMINING INDIA’S LEGAL POSITION ON RIGHT TO INTERNET
Perhaps the greatest achievement of the Anuradha Bhasin judgement is the fact that the Government is no longer allowed to pass confidential orders to shut down the internet for a region. Moreover, the reasons behind internet shutdown orders must not only be available for public scrutiny but also be reviewed by a Committee. The Committee will need to scrutinise the reasons for the shutdown and must benchmark it against the proportionality test. This includes evaluating the pursuit of a legitimate aim, exploration of suitable alternatives, and adoption of the least restrictive measure while also making the order available for judicial review. The nature of the restriction, its territorial and temporal scope will be relevant factors to determine whether it is proportionate to the aim sought to be achieved. The court also expanded fundamental rights to extend to the virtual space with the same protections. In this regard, the Court made certain important pronouncements on the right to freedom of speech and expression. These elements will not be discussed here as they fall outside the scope of this paper.
A few months prior in 2019, the Kerala High Court recognised access to the internet as a fundamental right. Its judgement in Faheema Sharin v. State of Kerala, the High Court addressed a host of possible issues that arise with a life online. Specifically, the High Court recognised how the internet extends individual liberty by giving people a choice to access the content of their choice, free from control of the government. The High Court relied on a United Nations General Assembly Resolution to note that the internet “… facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education…” – a fact that has only strengthened in value during the pandemic. The Kerala High Court held that since the Right to Education is an integral part of the right to life and liberty enshrined under Article 21 of the Constitution, access to the internet becomes an inalienable right in and of itself. The High Court also recognised the value of the internet to the freedom of speech and expression to say that the access to the internet is protected under Art. 19(1)(a) of the Constitution and can be restricted on grounds consistent with Art. 19(2).
ARGUING IN FAVOUR OF RIGHT TO INTERNET
In the pandemic, a major reason why some of us have any semblance of freedom and normalcy in our lives is because of the internet. At a time when many aspects of our day to day lives have moved online, including education, healthcare, shopping for essential services, etc. – the fundamental importance of the internet should not even be up for debate. The Government also uses the internet to disseminate essential information. In 2020 it used a contact tracing app (Aarogya Setu) which relied on the internet for its functioning. There also exists a WhatsApp chatbot to give accurate information about the pandemic. The E-Vidya Programme was launched by the Government to allow schools to become digital. In times like this, the internet is not one of the means to access constitutionally guaranteed services, it is the only way (Emphasis Added).
In this context, the right of access to the internet should be read as part of the Right to Life and Liberty under Art. 21. Therefore, internet access should be subject to restrictions only based on procedures established by law. To better understand what shape such restrictions could take, lawmakers and practitioners can seek guidance from another recent addition to the list of rights promised under Art. 21- the right to privacy. The proportionality test was laid down in the Puttaswamy I judgment and reiterated in Puttaswamy II (“Aadhaar Judgement”). In the Aadhar Judgement when describing the proportionality for reasonable restrictions, the Supreme Court stated –
“…a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).” –
This excerpt from Puttaswamy II provides as a defined view on the proportionality test upheld by the court in Anuradha Bhasin. This means that before passing an order to shut down the internet the appropriate authority must assess whether the order aims to meet a goal which is of sufficient importance to override a constitutionally protected right. More specifically, does the goal fall under the category of reasonable restrictions as provided for in the Constitution. Next, there must be a rational connection between this goal and the means of achieving it. The appropriate authority must ensure that an alternative method cannot achieve this goal with just as much effectiveness. The authority must ensure that the method being employed is the least restrictive. Lastly, the internet shutdown must not have a disproportionate impact on the right holder i.e. the citizen, whose right to freedom of expression or right to health is being affected by the shutdown. These reasons must be put down in writing and be subject to judicial review.
Based on the judgment in Faheema Sharin, an argument can be made how the pandemic has further highlighted the importance of access to the internet, not created it. The reliance of the Government on becoming digital with e-governance and digital payment platforms shows an intention to herald the country in a world that has more online presence than ever before.
People who are without access to the internet right now* – people in Kashmir, who have access to only 2G internet on mobile phones, or those who do not have the socio-economic and educational means to access the internet – are suffering. Not only are they being denied access to education, the lack of access to updated information about a disease about which we are still learning could prove fatal. Given the importance of the internet at this time of crisis, and for the approaching future, where people would want to avoid being in crowded classrooms, marketplaces, or hospitals- access to the internet should be regarded as a fundamental right.
This is not to say that the Court’s recognition of this right can herald India into a new world. The recognition of the right to access the internet will only be a welcome first step towards bringing the country into the digital era. The right to access the internet should also be made a socio-economic right. Which, if implemented robustly, will have far reaching consequences such as ease of social mobility, increased innovation, and fostering of greater creativity.
*Views expressed in the blog are personal and should not be attributed to the institution.
About the Author: The author is a 2021 graduate of National Law University, Delhi. She is currently working as a lawyer in Kathmandu, Nepal. Her interests lie in the area of digital rights, freedom of speech and expression and constitutional law.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Shreyasi Tripathi, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you agree with the Supreme Court’s pronouncement in Anuradha Bhasin that access to the internet is an enabler of other rights, but not a fundamental right in and of itself? Why/why not? Assuming for the sake of argument, that access to the internet is a fundamental right (as held by the Kerala High Court in Faheema Shirin), would the test of reasonableness of restrictions be applied differently, i.e. would this reasoning lead to a different outcome on the constitutionality (or legality) of internet shutdowns?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
The term ‘internet shutdown’ can be defined as an “intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information”.1 It has become a tool used by States against residents of the country in question when they are faced with some imminent threat to law and order or a certain breakdown of law and order. It is used with the belief that a blanket shutdown of the Internet helps restrict misinformation, spreading of fake news, incitement of violence, etc. that could take place.
ANURADHA BHASIN JUDGEMENT: INTERNET AS ENABLER OF FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF INDIA
Due to the suspension of mobile and broadband internet services in Jammu and Kashmir on August 4, 2019 before the repeal of Article 370 of the Constitution of India, a petition was filed at the Supreme Court by Anuradha Bhasin (a journalist at Kashmir Times). The petition challenged the Government’s curb of media freedom in Jammu and Kashmir as a result of the blanket internet and communications shutdown. On 10th January 2020, the Supreme Court’s judgement in Anuradha Bhasin v. Union of India, held that the internet has been deemed as a means to realise fundamental rights under Article 19 of the Constitution. The Court’s decision specifically applied to the right to freedom of speech and expression and the right to carry on trade or businesses.
The Court did not explore or answer the question of whether access to the internet by itself is a fundamental right since it was not a contention by the counsels. However, the Court did state that since fundamental rights could be affected by the measures applied by authorities (which in this case was an internet shutdown), a lawful measure which could restrict these fundamental rights must be proportionate to the goal.
One reading of the Supreme Court’s decision in Anuradha Bhasin is that the case could act as an enabler which legitimises government-mandated internet shutdowns. Nevertheless, the Court does explicitly hold that the curtailment of fundamental rights affected by internet access restrictions must be proportionate. In pursuance of this restrictive measures need to be the least restrictive in nature. However, determining what constitutes the least restrictive measure is a subjective question and would vary on a case by case basis. There is no guarantee that internet shutdowns would not be the opted measure. .
Critiquing the Rationale of the Anuradha Bhasin Judgement
It is important to investigate why the Court was hesitant to not deem internet access as a fundamental right. One major reason could be due to the fact that access to the internet is not possible for all the citizens of India in the current situation in any case. At the time of writing this paper, approximately half of India’s population has access to and uses the internet. Where such a visible ‘Digital Divide’ exists, i.e. when half of the Indian population cannot access the Internet and the government has not yet been able to provide such universal access to the internet, it would not be feasible for the Court to hold that the access to internet is in fact a fundamental right.
If the Court were to hold that access to the internet is a fundamental right in the current situation, there would be a question of what internet access means ? Is access to the internet simply access to an internet connection? Or does it also include the means required in order to access the internet in the first place?
If it is just the first, then deeming access to the internet as a fundamental right would be futile since in order to access an internet connection, electronic devices (e.g. laptops, smartphones, etc.) are required. At a purely fiscal level, it would be improbable for the State to fulfil such a Constitutional mandate. Moreover, access to the internet would be a fundamental right only to those who have the privilege of obtaining the means to access the internet. The burden on the State would be too high since the State would be expected to not just provide internet connection but also the electronics which would be required in order to access the same. In either case, it does not seem feasible for access to the internet to be deemed as a fundamental right due to the practical constraint of India’s immense digital divide.
RIGHT TO INTERNET FOR CURRENT AND FUTURE CHALLENGES
At a future point where it is feasible for more people to access the internet in India (especially in rural/remote areas), it may be appropriate to deem access to the internet as a fundamental right. However, at this juncture to argue that the access to internet is a fundamental right (knowing that it is primarily accessible to more privileged segments) would be an assertion anchored on privilege. Therefore, as important as the internet is for speech and expression, education, technology, etc. the fact that it is not accessible to a lot of people is something for policymakers and wider stakeholders to consider.
This is especially important to look at in the context of COVID-19. Lockdowns and movement restrictions have increased remote work and accelerated online education. In order to work or study online, people must have access to both devices and the internet.
In this context a UNICEF Report (August 2020)observed that only 24% of Indian households had internet connection to access education and in November 2020 an undergraduate student died as a result of suicide since she was unable to afford a laptop. This provides macro and micro evidence of the blatant digital divide in India. Hence, it is not feasible to deem the right to access the internet as a fundamental right.
In any case, if we were to assume that the right to access the internet was a fundamental right as what was held on 19 September 2019 by the Kerala High Court in Faheema Shirin R.K v. State of Kerala, the issue of whether internet shutdowns are legal or not would still be contended. Article 19(2) provides certain conditions under which the right to freedom of speech and expression under Article 19(1)(a) can be reasonably restricted. Similarly, Article 19(6) of the Constitution provides that the right to carry on trade and business can be reasonably restricted in the interest of the general public. If access to the internet would be deemed as a fundamental right, it would be necessary to look at the scope of Articles 19(2) and 19(6) through a different lens. Nevertheless, such alteration would not yield a different application of the law. In essence, the Government’s restrictions on internet access would operate in the same way.
It is highly likely that Internet shutdowns would still be constitutional. However, there could be a change in the current stance to the legality of internet shutdowns. Situations wherein internet shutdowns would be legal may become narrower. There may even be a need for specific legislation for clarity and for compliance with the constitutional obligations.
Due to COVID-19, many people are unable to access education or work in the same way that was done before. Even courts are functioning online and with that the necessity to access the internet has never been stronger. The court in Anuradha Bhasin held that the internet was an enabler to rights under Articles 19(1)(a) and 19(1)(g). However, now with the added scope for the necessity to be able to use the internet as a medium of accessing education and as a medium to access justice (which has been recognised as a fundamental right under Article 21 and 14), lawmakers and Courts must evaluate whether the rising dependency on the access internet would in itself be a reason for internet access becomes crystallised as a fundamental right.
*Views expressed in the blog are personal and should not be attributed to the institution.
In February 2022, CCG-NLUD will commence the latest edition of its Seminar Course on Technology and National Security Law and Policy (“the Seminar Course”). The Seminar Course is offered to interested 4th and 5th year students who are enrolled in the B.A. LL.B. (Hons.) programme at the National Law University, Delhi. The course is set against the backdrop of the rapidly evolving landscape of international security issues, and concomitant challenges and opportunities presented by emerging technologies.
National security law, viewed as a discrete discipline of study, emerges and evolves at the intersection of constitutional law; domestic criminal law and its implementation in surveillance; counter-terrorism and counter-insurgency operations; international law including the Law of Armed Conflict (LOAC) and international human rights law; and foreign policy within the ever-evolving contours of international politics.
Innovations and technological advancements in cyberspace and next generation technologies serve as a jumping off point for the course since they have opened up novel national security issues at the digital frontier. New technologies have posed new legal questions, introduced uncertainty within settled legal doctrines, and raised several legal and policy concerns. Understanding that law schools in India have limited engagement with cyber and national security issues, this Seminar Course attempts to fill this knowledge gap.
The Course was first designed and launched by CCGNLUD in 2018. In 2019, the Seminar Course was re-designed with the help of expert consultations to add new dimensions and debates surrounding national security and emerging technologies. The redesign was meant to ground the course in interdisciplinary paradigms in a manner which allows students to study the domain through practical considerations like military and geo-political strategy. The revised Seminar Course engages more deeply with third world approaches which helps situate several issues within the rubric of international relations and geopolitics. This allows students to holistically critique conventional precepts of the international world order.
The revamped Seminar Course was relaunched in the spring semester of 2020. Owing to the sudden countrywide lockdown in the wake of COVID-19, most sessions shifted online. However, we managed to navigate these exigencies with the support of our allies and the resolve of our students.
In adopting an interdisciplinary approach, the Seminar Course delves into debates at the intersection of national security law and policy, and emerging technologies, with an emphasis on cybersecurity and cyberwarfare. Further, the Course aims to:
Recognize and develop National Security Law as a discrete discipline of legal studies, and
Impart basic levels of cybersecurity awareness and inculcate good information security practices among tomorrow’s lawyers.
The Technology and National Security Seminar Reflection Paper Series (“The Reflection Series”) is meant to serve as a mirror of key takeaways and student learnings from the course. It will be presented as a showcase of exceptional student essays which were developed and informed by classroom discussions during the 2020 and 2021 editions of the Seminar Course. The Reflection Series also offers a flavour of the thematic and theoretical approaches the Course adopts in order to stimulate structured discussion and thought among the students. A positive learning from these two editions is that students demonstrated considerable intellectual curiosity and had the freedom to develop their own unique understanding and solutions to contemporary issues—especially in the context of cyberspace and the wider ICT environments. Students were prescribed atypical readings and this allowed them to consider typical issues in domains like international law through the lens of developing countries. Students were allowed to revisit the legitimacy of traditional sources of authority or preconceived notions and assumptions which underpin much of the orthodox thinking in geostrategic realms like national security.
CCG-NLUD presents the Reflection Series with a view to acknowledge and showcase some of the best student pieces we received and evaluated for academic credit. We thank our students for their unwavering support and fruitful engagement that makes this course better and more impactful.
Starting January 5, 2022, select reflection papers will be published three times a week. This curated series is meant to showcase different modules and themes of engagement which came up during previous iterations of the course. It will demonstrate that CCG-NLUD designs the course in a way which covers the broad spectrum of issues which cover topics at the intersection of national security and emerging technology. Specifically, this includes a showcase of (i) conceptual theory and strategic thinking, (ii) national security through an international and geostrategic lens, and (iii) national security through a domestic lens.
Here is a brief glimpse of what is to come in the coming weeks:
Reimagining Philosophical and Theoretical Underpinnings of National Security and Military Strategy (January 5-12, 2022)
Our first reflection paper is written by Kushagra Kumar Sahai (Class of ’20) in which he evaluates whether Hugo Grotius, commonly known as the father of international law owing to his seminal work on the law of war and peace, is better described as an international lawyer or a military strategist for Dutch colonial expansion.
Our second reflection paper is a piece written by Manaswini Singh (Class of ’20). Manaswini provides her take on Edward Luttwak’s critique of Sun Tzu’s Art of War as a book of ‘stratagems’ or clever tricks, rather than a book of strategy. In a separate paper (third entry), Manaswini also undertakes the task of explaining the relationship between technological developments and the conduct of war through the lens of the paradoxical logic of strategy.
Our fourth reflection paper is by Animesh Choudhary (Class of ’21) on Redefining National Security. Animesh, in his submission, points out several fallacies in the current understanding of national security and pushes for “Human Security” as an alternative and more appropriate lens for understanding security issues in the 21st century.
International Law, Emerging Technologies and Cyberspace (January 14-24, 2022)
In our fifth reflection paper, Siddharth Gautam (Class of ’20) explores whether cyber weapons could be subjected to any regulation under contemporary rules of international law.
Our sixth reflection paper is written by Drishti Kaushik (Class of ’21) on The Legality of Lethal Autonomous Weapons Systems (“LAWS”). In this piece, she first presents an analysis of what constitutes LAWS. She then attempts to situate modern systems of warfare like LAWS and its compliance with traditional legal norms as prescribed under international humanitarian laws.
Our seventh reflection paper is written by Karan Vijay (Class of ’20) on ‘Use of Force in modern times: Sisyphus’ first world ‘boulder’. Karan examines whether under international law, a mere threat of use of force by a state against another state would give rise to a right of self-defence. In another piece (eighth entry), Karan writes on the authoritative value of interpretations of international law expressed in texts like the Tallinn Manual with reference to Article 38 of the Statute of the International Court of Justice i.e. traditional sources of international law.
Our ninth reflection paper is written by Neeraj Nainani (Class of ’20), who offers his insights on the Legality of Foreign Influence Operations (FIOs) under International law. Neeraj’s paper, queries the legality of the FIOs conducted by adversary states to influence elections in other states through the use of covert information campaigns (such as conspiracy theories, deep fake videos, “fake news”, etc.) under the established principles of international law.
Our tenth reflection paper is written by Anmol Dhawan (Class of ’21). His contribution addresses the International Responsibility for Hackers-for-Hire Operations. He introduces us to the current legal issues in assigning legal responsibility to states for hacker-for-hire operations under the due diligence obligation in international law.
Domestic Cyber Law and Policy (January 28- February 4, 2022)
Our eleventh and twelfth reflection papers are two independent pieces written by Bharti (Class of ’20)and Kumar Ritwik (Class of ’20). These pieces evaluate whether the Government of India’s ongoing response to the COVID-19 pandemic could have benefited if the Government had invoked emergency provisions under the Constitution. Since the two pieces take directly opposing views, they collectively product a fascinating debate on the tradeoffs of different approaches.
Our thirteenth and fourteenth reflection papers have been written by Tejaswita Kharel (Class of ’20) and Shreyasi (Class of ’20). Both Tejaswita and Shreyasi interrogate whether the internet (and therefore internet access) is an enabler of fundamental rights, or whether access to the internet is a fundamental right unto itself. Their analysis rely considerably on the Indian Supreme Court’s judgement in Anuradha Bhasin v. Union of India which related to prolonged government mandated internet restrictions in Kashmir.
We will close our symposium with a reflection paper by Romit Kohli (Class of ’21), on Data Localisation and National Security: Flipping the Narrative. He argues that the mainstream narrative around data localisation in India espouses a myopic view of national security. His contribution argues the need to go beyond this mainstream narrative and constructs a novel understanding of the link between national security and data localisation by taking into consideration the unintended and oft-ignored consequences of the latter on economic development.
In the past few years, the interplay between technology and democracy has reached a critical juncture. The untrammelled optimism for technology has now been shadowed by rising concerns over the survival of a meaningful democratic society. With the expanding reach of technology platforms, there have been increasing concerns in democratic societies around the world on the impact of such platforms on democracy and human rights. In this context, increasingly there has been focus on policy issues like the need for an antitrust framework for digital platforms, platform regulation and free speech, the challenges of fake news, impact of misinformation on elections, invasion of privacy of citizens due to the deployment of emerging tech, and cybersecurity. This has intensified the quest for optimal policy solutions. We, at the Centre for Communication Governance at National Law University Delhi (CCG), believe that a detailed academic exploration of the relationship between democracy, and big and emerging tech will aid our understanding of the current problems, help contextualise them and highlight potential policy and regulatory responses.
Thus, we bring to you this series of essays—written by experts in the domain—in an attempt to collate contemporary scholarly thought on some of the issues that arise in the context of the interaction of democracy, and big and emerging tech. The essay series is publicly available on the CCG website. We have also announced the release of the essay series on Twitter.
Our first essay addresses the basic but critical question: What is ‘Big Tech’? Urvashi Aneja & Angelina Chamuah present a conceptual understanding of the phrase. While ‘Big Tech’ refers to a set of companies, it is certainly not a fixed set; companies become part of this set by exhibiting four traits or “conceptual markers” and—as a corollary—would stop being identified in this category if they were to lose any of the four markers. The first marker is that the company runs a data-centric model and has massive access to consumer data which can be leveraged or exploited. The second marker is that ‘Big Tech’ companies have a vast user base and are “multi-sided platforms that demonstrate strong network effects”. The third and fourth markers are the infrastructural and civic roles of these companies respectively, i.e., they not only control critical societal infrastructure (which is often acquired through lobbying efforts and strategic mergers and acquisitions) but also operate “consumer-facing platforms” which enable them to generate consumer dependence and gain huge power over the flow of information among citizens. It is these four markers that collectively define ‘Big Tech’. [U. Aneja and A. Chamuah, What is Big Tech? Four Conceptual Markers]
Since the power held by Big Tech is not only immense but also self-reinforcing, it endangers market competition, often by hindering other players from entering the market. Should competition law respond to this threat? If yes, how? Alok P. Kumar & Manjushree R.M. explore the purpose behind competition law and find that competition law is concerned not only with consumer protection but also—as evident from a conjoint reading of Articles 14 & 39 of the Indian Constitution—with preventing the concentration of wealth and material resources in a few hands. Seen in this light, the law must strive to protect “the competitive process”. But the present legal framework is too obsolete to achieve that aim. Current understanding of concepts such as ‘relevant market’, ‘hypothetical monopolist’ and ‘abuse of dominance’ is hard to apply to Big Tech companies which operate more on data than on money. The solution, it is proposed, lies in having ex ante regulation of Big Tech rather than a system of only subsequent sanctions through a possible code of conduct created after extensive stakeholder consultations. [A.P. Kumar and Manjushree R.M., Data, Democracy and Dominance: Exploring a New Antitrust Framework for Digital Platforms]
Market dominance and data control give an even greater power to Big Tech companies, i.e., control over the flow of information among citizens. Given the vital link between democracy and flow of information, many have called for increased control over social media with a view to checking misinformation. Rahul Narayan explores what these demands might mean for free speech theory. Could it be (as some suggest) that these demands are “a sign that the erstwhile uncritical liberal devotion to free speech was just hypocrisy”? Traditional free speech theory, Narayan argues, is inadequate to deal with the misinformation problem for two reasons. First, it is premised on protecting individual liberty from the authoritarian actions by governments, “not to control a situation where baseless gossip and slander impact the very basis of society.” Second, the core assumption behind traditional theory—i.e., the possibility of an organic marketplace of ideas where falsehood can be exposed by true speech—breaks down in context of modern era misinformation campaigns. Therefore, some regulation is essential to ensure the prevalence of truth. [R. Narayan, Fake News, Free Speech and Democracy]
Jhalak M. Kakkar and Arpitha Desai examine the context of election misinformation and consider possible misinformation regulatory regimes. Appraising the ideas of self-regulation and state-imposed prohibitions, they suggest that the best way forward for democracy is to strike a balance between the two. This can be achieved if the State focuses on regulating algorithmic transparency rather than the content of the speech—social media companies must be asked to demonstrate that their algorithms do not facilitate amplification of propaganda, to move from behavioural advertising to contextual advertising, and to maintain transparency with respect to funding of political advertising on their platforms. [J.M. Kakkar and A. Desai, Voting out Election Misinformation in India: How should we regulate Big Tech?]
Much like fake news challenges the fundamentals of free speech theory, it also challenges the traditional concepts of international humanitarian law. While disinformation fuels aggression by state and non-state actors in myriad ways, it is often hard to establish liability. Shreya Bose formulates the problem as one of causation: “How could we measure the effect of psychological warfare or disinformation campaigns…?” E.g., the cause-effect relationship is critical in tackling the recruitment of youth by terrorist outfits and the ultimate execution of acts of terror. It is important also in determining liability of state actors that commit acts of aggression against other sovereign states, in exercise of what they perceive—based on received misinformation about an incoming attack—as self-defence. The author helps us make sense of this tricky terrain and argues that Big Tech could play an important role in countering propaganda warfare, just as it does in promoting it. [S. Bose, Disinformation Campaigns in the Age of Hybrid Warfare]
The last two pieces focus attention on real-life, concrete applications of technology by the state. Vrinda Bhandari highlights the use of facial recognition technology (‘FRT’) in law enforcement as another area where the state deploys Big Tech in the name of ‘efficiency’. Current deployment of FRT is constitutionally problematic. There is no legal framework governing the use of FRT in law enforcement. Profiling of citizens as ‘habitual protestors’ has no rational nexus to the aim of crime prevention; rather, it chills the exercise of free speech and assembly rights. Further, FRT deployment is wholly disproportionate, not only because of the well-documented inaccuracy and bias-related problems in the technology, but also because—more fundamentally—“[t]reating all citizens as potential criminals is disproportionate and arbitrary” and “creates a risk of stigmatisation”. The risk of mass real-time surveillance adds to the problem. In light of these concerns, the author suggests a complete moratorium on the use of FRT for the time being. [V. Bhandari, Facial Recognition: Why We Should Worry the Use of Big Tech for Law Enforcement]
In the last essay of the series, Malavika Prasad presents a case study of the Pune Smart Sanitation Project, a first-of-its-kind urban sanitation programme which pursues the Smart City Mission (‘SCM’). According to the author, the structure of city governance (through Municipalities) that existed even prior to the advent of the SCM violated the constitutional principle of self-governance. This flaw was only aggravated by the SCM which effectively handed over key aspects of city governance to state corporations. The Pune Project is but a manifestation of the undemocratic nature of this governance structure—it assumes without any justification that ‘efficiency’ and ‘optimisation’ are neutral objectives that ought to be pursued. Prasad finds that in the hunt for efficiency, the design of the Pune Project provides only for collection of data pertaining to users/consumers, hence excluding the marginalised who may not get access to the system in the first place owing to existing barriers. “Efficiency is hardly a neutral objective,” says Prasad, and the state’s emphasis on efficiency over inclusion and participation reflects a problematic political choice. [M. Prasad, The IoT-loaded Smart City and its Democratic Discontents]
We hope that readers will find the essays insightful. As ever, we welcome feedback.
This series is supported by theFriedrich Naumann Foundation for Freedom (FNF) and has been published by the National Law University Delhi Press. We are thankful for their support.
Huawei finds support from Indian telcos in the 5G rollout as PayPal withdrew from Facebook’s Libra cryptocurrency project; Foreign Portfolio Investors moved MeitY against in the Data Protection Bill; the CJEU rules against Facebook in case relating to takedown of content globally; and Karnataka joins list of states considering implementing NRC to remove illegal immigrants – presenting this week’s most important developments in law, tech and national security.
[Sep 30] Why the imminent global economic slowdown is a growth opportunity for Indian IT services firms, Tech Circle report.
[Sep 30] Norms tightened for IT items procurement for schools, The Hindu report.
[Oct 1] Govt runs full throttle towards AI, but tech giants want to upskill bureaucrats first, Analytics India Magazine report.
[Oct 3] – presenting this week’s most important developments in law, tech and national security. MeitY launches smart-board for effective monitoring of the key programmes, The Economic Times report.
[Oct 3] “Use human not artificial intelligence…” to keep a tab on illegal constructions: Court to Mumbai civic body, NDTV report.
[Oct 3] India took 3 big productivity leaps: Nilekani, Livemint report.
[Oct 4] MeitY to push for more sops to lure electronic makers, The Economic Times report; Inc42 report.
[Oct 4] Core philosophy of Digital India embedded in Gandhian values: Ravi Shankar Prasad, Financial Express report.
[Oct 4] How can India leverage its data footprint? Experts weigh in at the India Economic Summit, Quartz report.
[Oct 4] Indians think jobs would be easy to find despite automation: WEF, Tech Circle report.
[Oct 4] Telangana govt adopts new framework to use drones for last-mile delivery, The Economic Times report.
[Oct 5] Want to see ‘Assembled in India’ on an iPhone: Ravi Shankar Prasad, The Economic Times report.
[Oct 6] Home market gets attractive for India’s IT giants, The Economic Times report.
[Oct 2] India
Govt requests maximum social media content takedowns in the world, Inc42 report;
Tech Circle report.
Facebook can be forced to delete defamatory content worldwide, top EU court
rules, Politico EU report.
[Oct 4] EU
ruling may spell trouble for Facebook in India, The Economic Times report.
[Oct 4] TikTok,
TikTok… the clock is ticking on the question whether ByteDance pays its content
creators, ET Tech report.
[Oct 6] Why
data localization triggers a heated debate, The Economic Times report.
Sensitive Indian govt data must be stored locally, Outlook report.
Protection and Privacy
[Sep 30] FPIs
move MeitY against data bill, seek exemption, ET markets report,
Financial Express report.
[Oct 1] United
States: CCPA exception approved by California legislature, Mondaq.com report.
[Oct 1] Privacy
is gone, what we need is regulation, says Infosys Kris Gopalakrishnana, News18 report.
Europe’s top court says active consent is needed for tracking cookies, Tech
[Oct 3] Turkey
fines Facebook $282,000 over data privacy breach, Deccan Herald report.
Singapore’s ‘fake news’ law to come into force Wednesday, but rights group
worry it could stifle free speech, The Japan Times report.
Minister says Singapore’s fake news law is about ‘enabling’ free speech, CNBC report.
[Oct 3] Hong
Kong protests: Authorities to announce face mask ban, BBC News report.
[Oct 3] ECHR:
Holocaust denial is not protected free speech, ASIL brief.
[Oct 4] FIR
against Mani Ratnam, Adoor and 47 others who wrote to Modi on communal
violence, The News Minute report;
Times Now report.
[Oct 5] UN asks
Malaysia to repeal laws curbing freedom of speech, The New Indian Express report.
[Oct 6] When
will our varsities get freedom of expression: PC, Deccan Herald report.
[Oct 6] UK
Government to make university students sign contracts limiting speech and
behavior, The Times report.
[Oct 7] FIR on
Adoor and others condemned, The Telegraph report.
[Sep 30] Plea
in SC seeking linking of social media accounts with Aadhaar to check fake news,
The Economic Times report.
[Oct 1] Why
another omnibus national ID card?, The Hindu Business Line report.
[Oct 2] ‘Kenyan
court process better than SC’s approach to Aadhaar challenge’: V Anand, who
testified against biometric project, LiveLaw report.
[Oct 3] Why
Aadhaar is a stumbling block in Modi govt’s flagship maternity scheme, The
Parliament panel to review Aadhaar authority functioning, data security, NDTV report.