Guest Post: Unpacking the Supreme Court’s interim order on sedition

This post is authored by Dhruv Bhatnagar

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:

1. 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;
2. persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
3. 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.

Sedition explained

Section 124A is a colonial law penalising (with up to life imprisonment) expression intended to incite hatred, contempt, or disaffection against the Government established by law. This offence is cognisable and non-bailable, meaning that the accused can be arrested without a warrant and grant of bail is not automatic, but rather subject to the discretion of the presiding court. Pertinently, the offences of ‘sedition’ and ‘seditious libel’ were abolished in the UK through the Coroners and Justice Act, 2009, pursuant to recommendations by UK’s Law Commission. Similarly, in furtherance of the Australian Law Reform Commission’s recommendations, in 201o the Australian Government replaced ‘sedition’ with ‘urging violence offences’ in the nation’s federal criminal law. This reform was introduced to modernise and clarify the elements of criminal offences. Thus, although multiple common law jurisdictions have long discarded sedition from their statute books, this archaic offence unfortunately remains in the IPC nearly 75 years after India’s independence. 

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.

Material facts

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:

1. 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).
2. 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.
3. Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
4. 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:

1. 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.
2. 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.

The Court could also have included a contempt warning in its Order against non-compliant State authorities. It has  previously done so in an order restraining coercive action by the State against persons seeking medical aid online during the second wave of the COVID-19 pandemic. Although it is settled law that contempt proceedings can be initiated by any person aggrieved by the disobedience of general directions intended at achieving constitutional goals, the inclusion of a contempt warning in the Order could have potentially ensured a stronger incentive to comply and apprised those uninitiated in the law about their right to file contempt petitions, if necessary.   

Conclusion

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.

Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

By Kasturika Kaumudi

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2^nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14^th February, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

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)

We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet and was used conveniently by the Government to order the disablement of over 850 website last week came up before the bench headed by the Chief Justice today.

Image: https://lmindia2.global.ssl.fastly.net/sites/lovematters_india/files/styles/medium/public/field/image/porn_dos_and_donts.jpg?itok=u2h406Wf

Mr. Mukul Rohatgi, the Attorney General of India represented the Union along with ASG Ms. Pinky Anand. He stated that after the last hearing the petitioners gave a list of 857 websites to the Government, which were blocked by the Department without any verification. Subsequently, the Department verified the list and then asked the Internet Service Providers to only block websites with child porn.

He said that if someone wants to watch porn in the confines of their bedroom how can we interfere. He subsequently stated that there are various kinds of pornography- hard-core, soft, violent porn. At this juncture the Chief Justice quipped ‘Mr. Rohatgi how do you know all this’, to which the AG replied ‘your lordship I have not watched it, but I do plan to, since that is the only way to understand the concerns, moreover my juniors are very tech savy’. He also stated that pornography is a grey area and there are no straight answers.

The AG argued that the geographical frontiers are no frontiers on the Internet and it is a borderless space, and it is very difficult to block anything on it. He said that if we block ten sites another five would pop up with new names at new locations.

He again reiterated that if someone wants to watch this in the privacy of their bedroom, the state cannot be a moral police or enter peoples bedrooms. He added that there are issues of freedom of speech and expression under article 19(1)(a) involved in the case.

The AG stated that the Government is committed to Internet freedom and has launched the ambitious Digital India project, which aims to connect crores of people to the Internet. He added that the MyGov website is becoming the converging point of lots of people to send ideas to the Government and connect with it.

He stated that the petitioner’s argument that the law as it stands today is ineffective and thus unconstitutional is not a valid argument. He cited an example of a case of customs officers in Mumbai who were booked as they were watching porn within a bungalow and the High Court acquitted them, as that is not an offence. He stated that the case is pending before the Supreme Court.

The AG submitted that there is no doubt that child porn has to be banned and the Government will make every effort to do that. However, he added that effective banning on the Internet is very difficult. He also stated that sites these days pick up profiles of the surfer and then the person gets targeted advertising, which the Government cannot block and we are not willing to take up the mantle of moral policing.

He stated that as of today our position is that child porn needs to be banned, beyond that if someone gives us a site which has child porn we will block it or block sites based on court orders as laid down in Shreya Singhal. Beyond that this issue is a larger debate, which can happen in court or outside it in Parliament or in the society.

At this point Mr. Vaswani’s lawyer, Vijay Panjwani stated that a criminal activity is a criminal activity whether in public or in private and transmission of pornography is a criminal activity, which the ISPs are doing. He added that we have the technology to block these sites, parties including people from Banaras Hindu University have filed affidavits in the case stating the same. He said that there is a seven-years imprisonment for anyone transmitting absence content under the Information Technology Act, but we are not even asking for that, we are just asking for the sites to be blocked.

The Attorney General interrupted at this point and stated that today every computer has a child/parental lock and can be used to limit children’s access to such sites and there are other softwares being developed for mobiles and other devices.

He added that the best filter is not to block this content at the gateway but if individuals want they can do it on their devices, as if two adults want to watch it for entertainment we cannot enter their houses. The AG further stated that we cannot become a totalitarian state and there is right to information and entertainment under article 19(1)(a).

Ms. Meenakshi Arora, Senior Advocate being briefed by AoR Mr. Rahul Narayan appearing for the Internet Service Providers Association of India argued that there is a conflict between the two orders issues by the DoT on 31^st July and 4^th August 2015. She added that ISPs are not responsible for the content added by intermediaries.

The first order asked ISPs to disable 857 websites, but the subsequent orders asked us to unblock 857 URLs. She stated that there is a difference between a website and a URL and added that we will block whatever we are asked to under the law and our license agreements but we need to have clear instructions regarding what needs to be blocked. The Government cannot ask us to identify and block content and that is unreasonable burden on the ISPs.

The CJI speaking for the bench stated that we have never passed any order in this case or asked for any blocking. The AG agreed with the Court and stated that since there has been no order by the Court, he will ask the Department of Telecom (DoT) and Department of Electronics and Information Technology (DeitY) to meet with ISAPI and sort out the difficulties.

The AG informed the court that they are working on some self-regulation mechanisms and requested to court to list the matter in October.

(Sarvjeet is a Senior Fellow & Project Manager at the Centre)

Cannot Block all Pornographic Material over the Internet: Centre informs the SC

The petition filed by Mr. Kamlesh Vaswani asking for a ban of all pornographic material over the internet came up for hearing today before a three judge bench headed by the Chief Justice RM Lodha.

Mr. Vijay Panjwani, the advocate appearing on behalf of Mr. Vaswani started the arguments by citing examples of how countries like China and Pakistan have banned pornography. The Chief Justice responded saying “What China, Pakistan or any other country does is not our concern. We have to see the problem and remedy it with respect to our own society.”

Mr. Vaswani with his lawyer Mr. Panjwani in the Court today

Additional Solicitor General, L. Nageswara Rao, appearing for the Centre explained to the court that pornographic videos and images are uploaded outside India. When they receive a complaint, they contact the concerned intermediary (such as Google) and ask them to block the content. He further stated that he has discussed the problem with the Government (DeitY) whose major problem is that even if the content is removed from one place online it is uploaded again in multiple different places. The court seemed to sympathise with this difficulty faced by the Government in enforcement and Justice Nariman even compared the problem to the sprouting of a Hydra’s head.

The Chief Justice stated that “the Centre should not be so helpless and ideally the law should develop faster than the technology”. He however admitted that “technology will always develop faster than law as the human mind is very fertile and innovative’. He also added a cautionary note stating that ‘though technology can do wonders but it can also lead to destruction”. Justice Kurian Joseph stated that these things lead to prurient interests in the younger generation and to rising instances of sexual exploitation.

The ASG informed the court that the problem has been placed before the Cyber Regulation Advisory Committee constituted under Section 88 of the Information Technology Act. The committee was currently examining the matter and one of the ways can be to ask all the big intermediaries to have servers in India. The ASG also categorically informed the court that it cannot pass orders to block all the pornographic websites.

The Court explained to Mr. Vaswani that if his prayer (which includes declaring section 66,67,69,71,72,75,79 and 80 of the Information Technology Act unconstitutional) is accepted in its entirety all the preventive measures currently present to regulate the production, distribution and transmission of the pornography will no longer exist and the spirit of the petition will be lost. The Chief Justice also added that that any measure to regulate porn will have to be within the constitutional framework and the Court cannot be expected to make law. The bench stated that ‘there needs to be a synthesis of law, technology and governance for effective control of pornography over the Internet and the law alone will not be effective if it is not enforceable’.

The bench acknowledged that it was dealing with a complex issue and that there may be multiple methods to achieve the result of regulating pornography over the internet. It directed the Government to place the writ petition before the Cyber Regulation Advisory Committee, so that they can assess the issues that are placed before the Court and come back with its views after four weeks.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

Private Censorship and the Tethered Media

DNA newspaper’s removal of Rana Ayyub’s brave piece on Amit Shah with no explanation is shocking. It is reminiscent of the role that media owners played in censoring journalists before publication during the Emergency, prompting L.K. Advani to say, “You were asked to bend, but you crawled.” The promptitude with which some media houses are weeding out political writing that might get them into trouble should make us reconsider the way we think about the freedom of the press. Discussions of press freedom often concentrate on the individual’s right to speak, but may be better served if they also accommodated another perspective – the audience’s right to hear.

It is fortunate that Ayyub’s piece was printed and reached its audience before attempts were made to bury it. Its removal was counterproductive, making DNA’s decision widely visible in what is popularly known as the Streisand Effect. The controversy emerging from DNA’s taking down the piece has generated much wider attention for Ayyub’s article, which is now mirrored on multiple websites, its readership expanding as outrage at its removal ricochets around the Internet.

This incident is hardly the first of its kind. Just weeks ago, news surfaced of Rajdeep Sardesai being pressurized to alter his news channel’s political coverage before the national election.  The Mint reported that the people pressurizing Sardesai wanted a complete blackout of Kejriwal and the Aam Admi party from CNN-IBN’s reportage. Had Sardesai capitulated, significant news of great public interest would have been lost to a large audience. CNN-IBN’s decision would have been chalked down to editorial discretion, and we the public be none the wiser.

Luckily for their audience, Sardesai and Sagarika Ghose quit the channel that they built from scratch instead of compromising their journalistic integrity.  However, the league of editors who choose to crawl remains widespread.  Their decisions are protected by the Indian constitution.

The freedom of press in India only protects the press from the government’s direct attempts to influence it. Both big business and the state have more instruments at their disposal than direct ownership or censorship diktats. These include withdrawal of lucrative advertisements, defamation notices threatening journalists with enormous fines and imprisonment; and sometimes even physical violence. Who can forget how Tehelka magazine’s ‘exposure of large-scale government wrongdoing resulted in the Tehelka’s financiers being persecuted by the Enforcement Directorate, with one of them even being jailed for some time.

The instruments of harassment work best when the legal notices are sent to third party publishers or intermediaries. Unlike the authors who may wish to defend their work or modify it a little to make it suitable for publication, a publishing house or web platform would usually prefer to avoid expensive litigation. Third-party publishers will often remove legitimate content to avoid spending time and money fighting for it.  Pressurising them is a fairly effective way to silence authors and journalists.

Consider the different news outlets and publishing houses that control what reaches us as news or commentary. If they can be forced to bury content, citing editorial discretion, consider what this means for the quality of news that reaches the Indian public. Indira Gandhi understood this weakness of the press, and successfully controlled the Indian media by managing the proprietors.

Although media ownership still remains concentrated in a few hands, the disruptive element offering hope for free public dialogue is the Internet.  The World Wide Web gives journalists access to the public sphere through blogs, small websites and social media. This means that when DNA deletes Rana Ayyub’s article, copies of it are immediately posted in other places.

However online journalism is also vulnerable. Online intermediaries receiving content blocking and take down orders tend to over-comply rather than risk litigation. Like publishers, these intermediaries can easily prevent speakers from reaching their audiences. Consider the volume of information online that is dependent on third parties intermediaries like Rediff, Facebook, WordPress or Twitter. The only thing that keeps the state and big business from easily controlling information flow on the Internet, is that it is difficult to exert cross-border pressure on online intermediaries located outside India.

However, the ease with which most of the mainstream media is controlled makes it easy to construct a bubble of fiction around audiences, leaving them in blissful ignorance how little they really know. Very little recourse is available against the publishers or intermediaries if these private parties censor an author’s content unreasonably.  Unlike state censorship, private censorship is invisible, and is protected by the online and offline intermediaries’ rights to their editorial choices.

Ordinarily, there is nothing wrong with editorial discretion or even with a media house choosing a particular slant to its stories. However, from the audience’s point of view, it is important that the public sphere ends up containing a healthy range of perspectives and interests, with a diversity of content across the media. If news of public significance is regularly filtered out of the public sphere, this affects the state of our democracy. The citizens of this country cannot participate in its governance without access to critical information.

 It is therefore very important to acknowledge the harm caused by private censorship. It endangers the democracy when just a few parties disproportionately control access to the public sphere. We need to think of how to ensure that the voices of journalists and scholars reach their audience. Media freedom is meaningful if considered in the context of the right of the audience, the Indian public, to receive information.

One Man’s Pornography is Another Man’s High Art: Internet Service Providers tell Supreme Court in the Porn Petition

Would photographs of Khajuraho be termed as porn?

On 27th January, 2014 the Supreme Court heard the petition filed by Kamlesh Vaswani requesting the court to pass an order to block websites with pornographic content in the country. The petition seeks among other things, to make viewing pornography a non-bailable and a cognizable offence. (Here and here are television discussion on the PIL, featuring the petitioner Mr. Kamlesh Vaswani) Currently, while the creation and distribution of porn are criminalised in India, consumption is not.

Of the 5 respondents only the Internet Service Providers Association of India (ISPAI) has filed a reply. The Supreme Court has therefore asked the other respondents (Union of India, Ministry of Communications & Information Technology,  Ministry of Information & Broadcasting and the Department of Telecom) to file their within 3 weeks. The bench of Justices BS Chauhan and J Chelameswar has also asked the respondents for a specific response addressing child pornography over the internet in their reply. During the hearing the lawyer appearing for the Union of India informed the court that they have requested for composition of a technical committee, to provide them with guidance on the issue. In a previous hearing the government had informed the court that it would find it difficult to block international porn sites viewable in India.

ISPAI has stated in its reply that there is “no unanimously accepted definition of pornography and the boundaries of the same are amorphous.” ISPAI’s response highlights the problem and states that “one man’s pornography is another man’s high art”, using AIDS awareness websites and photographs of Khajuraho as examples of how explicit material is not always pornography. ISPAI has stated in its reply that “ISPs neither create content of any sort, nor do they own, promote, modify or edit it. They are mere authorized service providers who provide customers access to internet. ISPs are mere conduits and they cannot be made liable for the contents they do not own. It would be akin to making liable telecom companies for conversations people have on their network”.

ISPAI has argued in its written response that ISP’s ought not block without specific orders from the courts or government because “such blocking would tantamount to pre-censorship of contents without authority of law and could unfairly limit the fundamental rights of the customers and may expose them to liability under civil laws”.

Advocates Rahul Narayan and Shivain Vaidalingam appeared for ISPAI in the matter and the court has fixed 10th March 2014 as the next  date of hearing.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University Delhi)