Right to Criticise: Urdu writers and the Curious Case of the ‘Loyalty form’

By Aishwarya Ayushmaan

Recently, reports emerged in the media regarding the requirement of a ‘loyalty form’ from Urdu authors and editors whose works were acquired for bulk purchase by the National Council for Promotion of Urdu Language (NCPUL). The NCPUL, which operates under the Ministry of Human Resource Development and is chaired by Central HRD Minister Smriti Irani, purchases books in bulk orders from select Urdu authors as part of its monetary assistance scheme. However, for the past few months, the authors have claimed that they have been asked to sign a form declaring that the content of their book is not against the government or its policies. The nature of the declaration raises concerns regarding its implications on the freedom of speech and expression. Moreover, this controversial requirement is unique to Urdu authors and editors, which makes it questionable in the context of right to equality and equal treatment under law.

Right to Criticise

The right to criticise the government or its policies is an integral aspect of the right to free speech and expression. In Express Newspapers Pvt. Ltd. v. Union of India[1],   the court reiterated that, “Central to the concept of a free press is freedom of political opinion and at the core of that freedom lies the right to criticise the Government, because it is only through free debate and free exchange of ideas that Government remains representation to the will of the people and orderly change is effected.” Such a conception of the right to criticise has been further sustained in Sakal newspapers[2].

The contentious declaratory form states that:

”I, son/daughter of __________ do hereby declare that my book/journal/booklet _______________ , which has been accepted by the National Council for Promotion of Urdu Language’s scheme for financial assistance for bulk purchase, does not contain anything which goes against the policies of the Indian government, or anything that is against national interest, or anything which promotes disharmony between the various communities.”

Clearly, the declaration is worded in very general terms and is open to a liberal interpretation. The authors have to certify that the content of their books does not contain anything which goes against the policies of the Indian government, against national interest or promotes disharmony between different communities. Moreover, this declaration is backed by a warning that legal action may be pursued against the writers if they do not abide by the declaration. In such cases, monetary assistance might have to be returned.

This precludes any form of critique of the government or its policies, and in effect quells the right to criticise, recognised as an integral part of the right to the freedom of speech and expression by the Indian judiciary.

Executive Overreach

Safeguards against the misuse of freedom of speech and expression are embedded within the Constitution, in the form of Article 19(2). These grounds are comprehensive and include protecting the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The current declaration extends beyond these restrictions, and appears to be a case of executive overreach.

Moreover, the motivations for such a requirement seems unclear. As reported, the NCPUL has clarified that the move was brought about because of a book which was found to contain incorrect information about Dr. APJ Abdul Kalam. However, in such case a simple declaration regarding the veracity of content might be enough, and is usually part of the process in the publishing business.

The NCPUL has defended this requirement on the grounds as that the government provides financial assistance to these authors, therefore the content of their books cannot be against the government.  However, the fundamental right to freedom and speech and expression cannot be curtailed in lieu of government aid, in the absence of a specific provision to that effect in the Constitution of India. Additionally, there is no evidence of a similar requirement from authors of other languages, to which the government provides aid.

The ambiguity surrounding the nature and exact purpose of this declaration, indicates that it may not be sustainable if challenged on constitutional grounds. But, in its present form, the declaration clearly inhibits an integral aspect of the right to free speech, the right to criticise.

[1] Express Newspapers Pvt. Ltd. v. Union of India , AIR 1986 SC 872

[2] Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOI).

TRAI releases Regulations enforcing Net Neutrality, prohibits Differential Pricing

Written by Siddharth Manohar

The Telecom Regulatory Authority of India (TRAI) has come out with a set of regulations explicitly prohibiting differential pricing for data services in India.

3. Prohibition of discriminatory tariffs.— (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content

TRAI recently concluded a public consultation process regarding differential pricing in data services (resources). The consultation paper covered all differently-priced or zero-rated services offered through data. The process has witnessed tremendous public participation, with a spirited campaign by Internet activists (Savetheinternet.in) and a counter-campaign by Facebook where it garnered support through users by using the narrative of connecting those who have no access (https://www.facebook.com/savefreebasics).

CCG submitted a formal response as part of this process, which you can read here, and filed an additional counter-comment signed by ten different civil society and research organizations.

The consultation process also involved a public discussion on the questions raised, where the usual suspects were all present – telecom companies arguing for differential pricing, and internet activists against. Also present were startup- and user- representatives.

Facebook’s telecom partner for carrying the Free Basics platform in India —Reliance Communications — was then instructed by TRAI to put a hold on rolling out Free Basics until they came up with a clear position on differential pricing and net neutrality. The regulator later confirmed that they received a compliance report to this effect as well. Facebook had been aggressively pursuing its campaign to collect support in favour of its platform for the entire duration of the public consultation.

TRAI has clarified that these regulations ‘may’ be reviewed after a two year period, or at an earlier time as decided by the Authority. An exception to the prohibition has also been included, to account for emergency services and services offered during ‘times of grave public emergency’. An additional exception is that of closed networks which charge a special tariff for their usage.

[We will shortly update the piece with more analysis of the regulations] 

A Constitutional Right against Free Basics? The Link between Article 19 and Zero Rating

Written by Siddharth Manohar

The past month has witnessed a rise in tide of public debate surrounding net neutrality once more, accompanying the release of another Consultation Paper by TRAI, and another AIB video urging public participation in the ongoing consultation process. To add to this mix there has also been an effort from Facebook to build consensus amongst its userbase regarding the effect of ‘Free Basics’ on net neutrality. The crux of one set of arguments put forth in these debates consists of the harm that a differentially priced platform can cause to competition in the market for Internet applications, along with the related concern of monopolization of a section of the country’s userbase. The other side places emphasis on the need to increase the accessibility of the Internet, and both have disagreements as to the interpretation of the term ‘net neutrality’.

An important issue that gets missed out in the rhetoric is the Fundamental right of Internet users to access a diverse set of media sources on any given platform whose nature is that of a public utility. Media diversity implies that the information stream reaching the public through any public medium must be prevented from being unduly influenced by one or a few entities with a controlling effect on the market for these media content providers. It also rules against any role for the carriers of content (known usually as intermediaries or service providers) in choosing whose or what kind of content is allowed on the medium. The usage and allocation of the medium as a public resource is subject to certain Constitutional principles as well, and these are also ignored while discussing how to regulate (or not) Internet-related services in India.

The Right to be Informed

Article 19 of the Constitution guarantees the right to freedom of expression, but this right also includes the right of citizens to a plural media. As discussed by the Supreme Court in Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, the debate and opinions sought to be protected by Article 19 need to be informed by a plurality of views and an ‘aware citizenry’. What does this mean for regulation of access to the Internet? It translates into ensuring the possibility of a wide array of options in terms of media consumer choices being made available to the public. Any communication platform cannot remain restricted in its control by one or a few parties. This restricts the nature of the content available through that media, leading to narrowing of the ideas views available to citizens on any public platform.

It is far from difficult to balance this concern with the free market. The principle encourages a competitive atmosphere between content providers, and seeks to avoid a situation where there is a disproportionately dominant player in the market exerting undue influence over the functioning of that market. The presence of a single or few dominant entity(ies) enjoying a magnified impact on the market makes it difficult for newer entrants to make a dent in the market-share of the dominant player, thus reducing the possibility of any competition being provided by these smaller players.

This Constitutional requirement comes in conflict with the concept of zero-rated plans at its core: can we really have a telecom company deciding the exact specific pieces of content that we receive in preference to all other content? Are we willing to hand them this power of shaping consumer choice, public access and opinion simply by choosing the right business partners? If we can conclusively answer these questions in the affirmative, zero-rating plans would have no quarrel with Article 19. Indeed, such an affirmation would even successfully dispense with one of the core tenants of the idea of net neutrality – that all data be treated in the same manner irrespective of its content.

Spectrum as a Public Resource

The Cricket Association of Bengal judgment also discusses the regulation of spectrum as a public resource. This is arguably an even more fundamental question, addressing the question of what qualifies as legitimate usage and allocation of spectrum. The Court characterized airwaves as a scarce public resource, which ought to be used in the best interests of the public, and in a manner that prevents any infractions on their rights. Justice Reddy’s opinion in the judgment even acknowledges the requirement of media plurality as part of the required policy approach for regulating spectrum.

Another SC judgment arguing in a similar vein, Association of Unified Tele Services Providers & Ors. v. Union of India & Ors., ruled that the State is bound to use spectrum resources solely for the enjoyment of the general public. Applying the public trust doctrine, it explained that the resources are prohibited from being used or transferred for any kind of private or commercial interest.

What the available jurisprudence effectively lays down can be encapsulated in the following: Spectrum is a public resource that can only be used and/or allocated by the state for general public benefit, and cannot be used in any manner for private or commercial interests. This public interest contains various concerns, one of them being the right to a diverse set of media content sources, so as to avoid interested parties having any kind of power or control over the content available to consumers. What this means for the State is that spectrum must be used in order to maximise the variety of media available to end-users and prohibit control over the medium of transmission being controlled by a single or few player(s).

This creates a tricky situation for TRAI, who have asked for public comments on the desirability of differential pricing in data services. There is a glaring lack of clarity on the exact mandate provided to the state regarding how to use spectrum resources to achieve TRAI’s officially cited objective of providing ‘free’ Internet access to consumers. Without discussion focusing on the exact nature of what we want to achieve, we will continue to be forced take reactionary positions regarding most issues and developments. Forming a concrete policy to connect India’s billion can only get a whole lot easier once we are able to agree upon a common goal and a set of principles regarding how to get there.

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Image Credit: Everybody Loves Eric Raymond: http://geekz.co.uk/lovesraymond/

Information Gatekeepers and Article 19(1)(a) of the Indian Constitution

I have put a draft of my paper titled ‘Gatekeeper Liability and Article 19(1)(a) of the Indian Constitution on SSRN. You can read it here. It will eventually be published in the NUJS Law Review.

Alternatively, this essay (written for a UPenn/ CIS/ ORF publication) based on the paper sets out my argument briefly.

Introduction

The press was once the most important medium of mass communication. Indira Gandhi understood this well and used the gatekeeping function of large media houses to prevent citizens from accessing critical information. The press’s function as an information gatekeeper is protected by jurisprudence, but this protection is articulated as ‘freedom of the press’, making it a medium-specific protection. As the Internet increasingly replaces the press as the most important source of information for citizens, structural protections need to extend online. The online intermediary may be the new avatar of the information gatekeeper, third parties who perform an essential function in transmitting information from speakers to audiences – they are potential choke points that the state can use to cut off flows of information.

Aside from the press freedom norms, much of our freedom of expression jurisprudence deals with the state’s relationship with the speaker. The contours of our freedom of expression rights have formed in this context. It is relatively easy for the judiciary to grasp how statutory provisions like section 66A of the Information Technology Act impact freedom of expression. Here the law targets the speaker directly and any unjust application or chilling effect is more visible. It is also more likely to be resisted by the target of regulation, since the speaker is always interested in her own right to speak.

Indirect regulation of speech is quite different. The law is aimed at information gatekeepers, who may choose not to publicise censorship and who may not be as interested in protected the speech as the original speaker. Scholars have described these gatekeepers as the ‘weakest link’, through which speech is most vulnerable to state excesses.

Information gatekeepers and Indian law

It is common enough for states to use ‘middle-men’ to enforce change in behaviour when it is difficult to control the primary offender’s conduct directly. For example, since it is difficult to directly compel minors to avoid drinking, the law targets alcohol-sellers, leveraging their gatekeeping function to cut off the supply of alcohol to minors.

Information gatekeepers were used to regulate the flow of information even in the pre-digital world. Publishers and booksellers were held liable for circulating banned publications in many countries including India. India has a particularly pernicious rule criminalizing the circulation of obscene content. This comes from the Supreme Court’s judgment in Ranjit Udeshi v. State of Maharashtra, that is well known for its interpretation of obscenity law in the context of D.H. Lawrence’s ‘Lady Chatterley’s Lover’. The other critical element of this judgment received almost no attention – the liability of a bookseller for the circulation of obscene content.

D.H. Lawrence was never prosecuted in India for his book. The ‘Lady Chatterley’s Lover’ case in the Supreme Court was about the liability of the owners of Happy Book Stall, a bookshop at which ‘Lady Chatterley’s Lover’ was sold. The Supreme Court said the booksellers were liable for circulation of the obscene content even if they argued that they were unaware that a book contained such content. Consider what this means: booksellers cannot plead ignorance of obscene content within any of the books they sell, and will be liable nonetheless. The state only has to prove that the booksellers circulated obscene content, and not that they did so knowingly. It is lucky that this part of the Supreme Court judgment went largely unnoticed since it could easily be used by the intolerant file criminal complaints that shut down large bookstores all over the country – all they need to do is look for a few books that the law would categorise as obscene. Booksellers would then have to scour every page and paragraph of each book they sell to weed it out content that might get them arrested – this would make it very difficult to do business.

Online intermediaries as information gatekeepers

Intermediary liability first received attention in India after the infamous ‘DPS-MMS’ explicit video, featuring two minors, ended up being sold on Baazee.com. The Managing Director of the company that owned the website was arrested. The fact that he had no knowledge that this content was shared on the website was irrelevant thanks to the Supreme Court’s ‘Lady Chatterley’s Lover’ verdict. This situation made it clear that if the law applicable to bookshops continued to apply to online intermediaries, online platforms would not be able to function in India. A platform like Facebook or Youtube hosts too much user content to be able to sift through it and proactively filter out everything obscene.

Fortunately, the amendment of the Information Technology Act (IT Act) gave Internet intermediaries immunity from this liability for third party content. The immunity was conditional. Intermediaries that edit or otherwise have knowledge of the content that they transmit are not immune from liability. To remain immune from liability, intermediaries must comply with certain legal obligations to take down content or block it in response to government orders or court orders. These obligations also leverage the gate-keeping function of these intermediaries to regulate online content – internet service providers and online platforms can ensure that certain kinds of content are inaccessible in India.

Why gatekeepers matter

Although information intermediaries existed in the pre-internet information ecosystem, their role is critical in the context of online content – several intermediaries mediate our access to online content. Some of these, like the gateways through which the Indian network connects to the global network, are located in India and are easy for the government to control since they are subject to onerous licenses and are few enough in number for the state to be able to control all of them successfully. Other intermediaries like Facebook or Google, are online platforms, and most of these have offices outside Indian jurisdiction.

Discussions about freedom of expression that focus on the direct relationship between the state and the speaker are not helpful in this context. This kind of reasoning tends to ignore the collateral effects of certain kinds of regulation of speech – the ‘Lady Chatterley’s Lover’ case case is a classic illustration of this with its tremendous impact on the liability of all booksellers and later on Baazee.com and other web based platforms.

As the new media make gatekeepers and intermediaries more critical to the controlling the flow of information, we need to focus on other dimensions of freedom of expression if we are ensure that effective safeguards are put in place to protect speech. Our jurisprudence on freedom of the press offers some degree of protection to newspapers so that regulation of their business structure cannot be used to influence their content, but this form of gatekeeper protection is limited to the press. There are information gatekeepers other than the press in India, and it is time that we think carefully about protecting the information ecosystem. Free speech principles need to accommodate themselves to a media ecosystem that is increasingly dependent on information gatekeepers.

Freedom of expression and access to information

It is time that our jurisprudence started focusing more on citizens’ rights to access information. Although this right that has been recognized in India, it needs to be outlined in more detail. In the well-known judgment in Shreya Singhal v. Union of India, which struck down section 66A of the Information Technology Act, the Supreme Court failed to deal with intermediary liability adequately because it did not use the lens of access to information and gatekeeper liability. Using traditional jurisprudence that focuses on the direct impact of regulation of speech, the court gave content-creators the right to a hearing and a right to appeal blocks and removals of their content wherever possible. However, it completely disregarded the rights of citizens to access online content.

The content blocking system in India makes all government blocking orders confidential. This means that when an intermediary is required to block content under the IT Act, users might imagine that the decision was a private decision made by the intermediary. Since the intermediary is unlikely to be willing to spend resources battling for the various kinds of content it hosts, any blocking process that counts on the intermediary to offer up sufficient resistance to unconstitutional blocking orders errs egregiously. The law must offer those who are actually affected – the publishers and the readers of the information – a chance to fight for content that they have the right to circulate and access. Of these, the publishers of information do have some right to make their case before the government committee making the blocking decision thanks to the Supreme Court’s decision in Shreya Singhal v. Union of India. But this judgment does nothing for citizens who could lose access to a wealth of information if the government might unreasonably blocks content created by someone in another country. The content publisher would not be in a position to defend its content in India, and citizens have not been given any avenue to defend their rights to view the content before the government committee making the decision.

The focus on access to information has been discussed many scholars, from Alexander Meiklejohn onwards. Amartya Sen has written about the salience of public discourse in a democracy. Robert Post and Jack Balkin have articulated in the detail the importance of focusing on the free flow of information or access to information, rather than on the right of individual speakers. The right we refer to as ‘freedom of expression’ is about much more than the freedom to say what one pleases. It is the foundational principle from which our rules about free flow of information have been built.

Conclusion

Section 66A was an example of what Jack Balkin characterises as ‘old school’ regulation of speech. This consists of criminal penalties, injunction and damages aimed directly at the speaker or publisher. The Supreme Court’s treatment of section 66A reflects its comfort with this form of regulation and its implications for freedom of expression.

Intermediary liability, and the use of Internet gatekeepers to control the flow of online information follows a different system: it uses control over the infrastructure or platforms of speech to exercise control over speech. Jack Balkin characterizes this as ‘new school’ regulation. Through ‘collateral censorship’, a third party is made to block or remove a primary speaker or publisher’s speech. For example, a government order or a court order requiring that certain online content be blocked, does this by requiring and internet service provider or online platform to censor the information. New school regulation works necessitates co-operation of these third party intermediaries like internet service providers and online platforms with the government, and this can be achieved by compelling them to co-operate through the law or by using softer means to co-opt them.

New school regulation must be assessed in terms of the collateral harm that it causes. It is not a question of whether online pornography should be blocked or not anymore. It is a question of whether the process used to get intermediaries to block the pornography can be abused to block constitutionally protected speech. We have already recognized the collateral effects of structural regulation in the context of press freedom, and the Supreme Court has barred certain kinds of structural interference with the media that might impact their reporting. It is time to create a version of this principle for online speech, and to think in terms of access and free flow of information.

References

Ranjit Udeshi v. State of Maharashtra

Shreya Singhal v. Union of India

Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

Sakal Papers v Union of India

Amartya Sen, Idea of Justice, 321-337 (2009)

Chinmayi Arun, Gatekeeper Liability and Article 19(1)(a) of the Constitution of India, NUJS Law Review [forthcoming-2015]

Jack Balkin, ‘Old School/ New-School Speech Regulation’, 127 Harv. L. Rev. 2296

Jack Balkin, ‘The first amendment is an information policy’, Hofstra Law Review 41 (2013)

Robert Post, Participatory Democracy and Free Speech, 97 Virginia L. Rev. 3 (2011).

Seth Kreimer, Censorship by Proxy: the First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, Penn Law: Legal Scholarship Repository (2006)

The PornBan debate: our archived pieces on the subject

Sadly, the debate on banning pornography has not moved very far over the last two years. Here are pieces that CCG has published on the subject over time:

  1. The problem with blanket bans of  online pornography: filtering online content
  2. Blocking online pornography: who should make constitutional decisions about speech
  3. Porn and keyword filters, and how we will be sacrificing our public discourse (within this piece on the AIB petition)

What’s the hue & cry about Criminal Defamation?: Summary of Arguments from the Supreme Court

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

Freedom of Speech & Google Search- Preliminary Notes for India: Working Paper by Ujwala Uppaluri

As the Internet progressively becomes a key means by which information is communicated and exchanged, there is a growing need to examine how the applications that facilitate access to these troves of information operate.

Search engines have come to play a critical role in the digital information landscape. In India the question of search is currently a subject of investigation and more recently a fine by the Competition Commission of India. More recently the question of what search engines can list in their results has come up before the Indian Supreme Court.

Google-Bing-Search-Engine

Google and other search engines have argued that their algorithm’s ranking of search results was an exercise in editorial discretion, available to all speakers as a First Amendment right. This has laid the groundwork for claims of search engines’ rights to freedom of speech. However, in the recent landmark judgment of Shreya Singhal v. Union of India, the Supreme Court had during the oral hearing stated that intermediaries do not have free speech rights.

Against this backdrop, this paper very briefly introduces comparative scholarship around search and the constitutional right to free speech and takes the first steps to making that the argument for the need to regulate important participants such as search engines in the information landscape, and for the need to construct and clarify Article 19(1)(a) frameworks to ensure rights adjudication to such regulation result in balanced outcomes.

The Complete Paper can be found here: https://drive.google.com/file/d/0BwY1OLu_H1ICanlpUmt2dGdqelk/view?usp=sharing

(Ujwala Uppaluri was a Fellow at CCG from June 2014 to April 2015 and will be joining Harvard Law School to pursue her LL.M. from August 2015.)