J&K social media ban: Use of 132-year-old Act can’t stand judicial scrutiny, say experts

Jammu and Kashmir's social media ban: Legal experts are not convinced this is a viable order

Written by Shruti Dhapola | Published:April 28, 2017 3:17 pm
Social media, Social media ban, Jammu and Kashmir social media ban, Facebook banned in J&K, Facebook J&K ban, J&K social media ban, Twitter banned in Kashmir, Internet shutdown, technology, technology news Jammu and Kashmir has a one month ban on all social media, but experts are not convinced the order in legally viable. (Image source: AP)

For residents of Jammu and Kashmir, there’s a blanket ban on social media for the next one month. This means no access to Facebook, WhatsApp, Twitter, Snapchat, Skype WeChat, YouTube, Telegram and other social networks.

As The Indian Express reported, this ‘social media ban’ was ordered by the state government after Chief Minister Mehbooba Mufti chaired a meeting of the Unified Command Headquarters in Srinagar. The total list includes 22 social media websites, and the order, a copy of which is available with The Indian Express, says this is being done “in the interest of maintenance of public order.”

The order to block the sites was issued by RK Goyal, Principal Secretary in the Home department, and cites Section 5 of Indian Telegraph Act, which “confers powers upon the Central government or the state government to take possession of license telegraphs and order stoppage of transmission or interception or detention of messages”.

The order reasons that social media sites are “being used by anti-national and anti-social elements by transmitting inflammatory messages in various forms”. It directs all ISPs to block these websites in the state of Jammu and Kashmir.

But questions are already being raised over its legality.

“This is an illegal order because the Telegraph Act and Rules, which the order cites, doesn’t give the government the power to block websites. The Telegraph Act is a colonial-era legislation first passed in 1885 in the aftermath of the Mutiny, making telegraphs a monopoly of the colonial British government, and restricting Indians’ access to communications technologies. In 1996, in the PUCL case, the Supreme Court laid down that powers to intercept or block transmission of messages cannot be exercised without procedural safeguards in place. In 2007, procedural safeguards were made for interception, but not for blocking of telegraphic communications,” points out Pranesh Prakash, Policy Director at Centre for Internet and Society.

Social media, Social media ban, Jammu and Kashmir social media ban, Facebook banned in J&K, Facebook J&K ban, J&K social media ban, Twitter banned in Kashmir, Internet shutdown Even even blocking under the IT Act isn’t something that can be ordered over night, and the powers for this rest with the central government.

Pavan Duggal, senior lawyer specialising in cyberlaw, concurs. “Legally, the order is not viable. This is because the IT Act applies for blocking, under Section 69 (A). Also Section 81 of the IT Act also make it clear that this is a special law, which will prevail over any other older law. The IT ACT deals with everything related to the internet.”

The IT ACT notes in Section 1, that “It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention there under committed outside India by any person.”

But even blocking under the IT Act isn’t something that can be ordered over night, and the powers for this rest with the central government.

“There’s a provision (69A) in the Information Technology Act which provides for blocking of specific web pages for national security reasons, but only by the Central government. The J&K government, thus can only request the Central government to block. The central government has in the past denied requests by state governments as they were unlawful requests,” Prakash said.

However, blocking of URLs or in fact complete internet shutdowns is not new in India. “This is an example of Internet manipulation by the governments world over. The first casualty of any disturbance is now the Internet and the government, even the democratic ones living under rule of law have decided that is a-okay to prevent people from communicating in the name of law and order,” said Mishi Choudhary, President and Legal Director at SFLC.in

SFLC.in has also been keeping a track of internet shutdowns in India. It has a dedicated website Internetshutdowns.in which crowd-sources information on these bans, and India has already seen seven shut internet shutdowns in first three months of 2017. For instance, in the state of Nagaland internet and mobile services were down for nearly a month from January 30 to February 20.

The issue of url blocking and internet shutdowns inevitably gets linked to one of freedom of speech. While reasonable restrictions can be imposed under Article 19 (2) of the Constitution, experts are not convinced the current order makes enough of a case to justify such a blanket ban.

“The citizens of J&K are Indian citizens and can challenge the order as violative of Article 19 (1) (a) of the Constitution, violative of right to free speech and expression,” says Choudhary.

“Any kind of blocking must conform to the Constitutional guarantees of freedom of expression, and any blocking must be legally “reasonable” for it to be acceptable as a legitimate restriction under Art.19(2). This blanket ban of 22 arbitrarily chosen service — why block QQ or WeChat, but not LinkedIn — and that too for a month, cannot be called reasonable under any circumstances,” argues Prakash.

Prakash adds that the order also raises other international concerns for India. “It also violates India’s international legal obligations under the International Covenant on Civil and Political Rights (ICCPR), whose Article 19 protects the freedom of thought, opinion and expression. Only those restrictions that are provided by law, have a legitimate aim, are necessary with less restrictive option being available, and are proportionate to the harm being address are allowed. For instance, targeting of hate speech that is calling for genocide is reasonable. But such blanket bans of communications platforms are not,” he argues.

So can the citizens challenge such an order, which puts a blanket ban on social networks? The answer is yes, as in this case this order “is legally untenable,” explains Duggal.

On the practice of blocking, he points that in today’s world it can only be seen an antiquated practice. “To give an analogy it is like fixing a leaking roof with a band-aid. It will only increase traffic to the blocked websites, and there are indirect ways to reach these sites via proxies and other tools as well,” he adds.

The orders can always be reviewed by the courts. “While the IT Act allows for blocking, it should be remembered the process is always open to judicial review. Courts have final authority, and they can examine whether the principles of law were applied when passing such a blocking order,” explains Duggal.

The affected social media websites or ISPs don’t yet have a response to this order. When we reached out, Facebook said it did not have an official comment on the ban. Mobile internet service providers Vodafone and Airtel also refused to comment.

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    autonomous
    Apr 28, 2017 at 11:58 pm
    An software hub(I N D I A) of the world still not having enough people to defend cyber attack & wage cyber war fare against enemy counties stead we are banning internet to control the spread of radicalisation.Its pathetic, current gov should wake up and create strong cyber warfare unit for our country defense and offense.
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      Mahender Goriganti
      Apr 28, 2017 at 11:37 pm
      True we may need to update the laws but doesn't mean gov con't act in emergency situations in the absecence of updated laws
      Reply
      1. S
        Syed Muniruddin
        Apr 28, 2017 at 11:15 pm
        The State's authority should prevail in the interest of peace and security in the J&K State.
        Reply
        1. R
          Ram
          Apr 28, 2017 at 11:00 pm
          The Kashmiri problem is due to muslim majority nature and dominance of wahabi ideology among the po tion. This is the typical problem all over the world be it Gangzu in China, Chachnia in Russia or parts of Thailand,Philippines or Europe where they are in minority but want separation/domination. Only solution is to make sure that such localized artificial majority muslims create should be neutralized and solution in India is removal of article 370, make kashmiri demography what it was a hundred years ago, like the rest of India and deport all who refuse such move as nation was already divided in 1947 and separate nation created for them. Deal with Kashmiri islamis like China does or Israel does. Congress policy of last 70 years has let this cancer grow to this stage and now serious chemotherapy needed to eliminate cancerous cells without harming normal ones! May be ten year army rule with absolute power to security forces, m ive settlement of all retired army personnel with do.
          Reply
          1. S
            sullu
            Apr 28, 2017 at 10:33 pm
            The fate of the Kashmir is ultimately to be decided by the Peoples. We will not and cannot back out this (Pledge) We are prepared to have referendum held under international au es like United Nations. We want a fair and referendum of the peoples and we will accept their verdict.”” JAWARLAL NEHRU Indian sub continent will be divided in multiple states as it was before British Raj. WITH WILL OF ALLAH ALLAH KI YAHI MARZE HAI AUR AISSA HEE HO GA
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            1. J
              jack
              Apr 28, 2017 at 9:48 pm
              Kashmir belongs to India, and those of you, who I suspect are mostly Muslims should leave our land and move next door where you will be welcomed with open arms. Ungrateful and disloyal Kashmiri people like you are scourge on humanity. We have given you everything yet you back stab us, its in your DNA Well riddance , remember Indians are the most tolerent people in the world, we have never invaded anyone or imposed our religion or way of life on anyone. one
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              1. S
                savarkar
                Apr 28, 2017 at 4:50 pm
                y not block army entering kashmir which is serving sanghi masters agenda of restoring so called hoax of kashmiri pandit exodus or holohoax like jewish holohoax
                Reply
                1. M
                  Mir Rasool
                  Apr 28, 2017 at 4:42 pm
                  India lost war now losers trying to curb voices its better for india leave kashmir stop state terroris in occupied kashmir which you are illegally occupying by force of Gun . UN should declare India a Terrorist state .
                  Reply
                  1. K
                    Kashmir
                    Apr 28, 2017 at 4:22 pm
                    Though very informative article, however i feel this is really a joke that kashmiri can challenge this ban, they have been raped , murdered since those cases were put into the dust & still you think any kashmiri can have faith in Indian judicial system & will lodge complaint?
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                    1. R
                      raj
                      Apr 28, 2017 at 4:11 pm
                      Since we are on war with Kashmiris everything is legal.
                      Reply
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