As your social media timeline is flooded with news of a pathbreaking verdict by the Supreme Court of India on freedom of speech, there is reason to pause. While holding that Section 66A of the Information Technology (Amendment) Act, 2008, is unconstitutional and laying down guidelines for online takedowns under the intermediary rules, the court, in Shreya Singhal vs Union of India, has upheld Section 69A and the blocking rules framed under it. The blocking rules are distinct from online takedowns. Technically, a takedown results in the removal of content by an online platform such as Facebook, and a block disables access for a user in India through an internet service provider such as Airtel. In practice, the state has routinely blocked content on the internet in complete secrecy, preventing any judicial scrutiny. The constitutional challenge on behalf of the People’s Union for Civil Liberties was not to the power of blocking content but rather to the manner in which the blocking is done. These arguments focused on the present secrecy in blocking and the lack of procedural safeguards.
While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing. This lack of information is compounded by the rules themselves attaching confidentiality to any complaints and actions taken by the government to block websites subsequently. RTI applications that have requested for further information on the implementation of these safeguards have, till date, been unsuccessful or at best provided incomplete information. In the absence of any transparency, blocking orders by themselves are labelled as confidential or “top secret”, and any information about them comes only through leaks in the media. No comprehensive list of websites and the legal orders under which they are blocked exists.
The court, failing to notice these deficiencies, indicates that the remedies under Article 226 permit persons to file writ petitions in state high courts, which can then cure any procedural infirmities. However, to even gather this information is tedious, given that the blocking orders are secret and do not outline reasons for the blocking. Hence, the remedy is rendered infructuous not only due to institutional practices but also due to the mandated secrecy in the rules. The court also indicates that the safeguards present in book-banning under the Code of Criminal Procedure are specific to its medium and not applicable to the internet. In doing so, it tolerates the legislature’s tendency to view the internet as an inherently dangerous medium, one that deserves greater regulation with decreased safeguards for civil rights. This is a cause for worry.
Even the government’s past approach towards blocking orders does not inspire confidence, given that basic processes and safeguards are flouted. During the hearing of this case, 12 websites were blocked when the Mumbai ATS approached a court alleging they were hosting Islamic State content. This included a popular video-sharing website, as well as other information-sharing platforms. Acting on this, a blocking order was issued where entire platforms, not specific links, were blocked. Users guessed that the websites had been blocked but did not have any way to confirm this. Subsequently, after vociferous criticism, the blocking orders were recalled. This presents an instance where even the pithy safeguards under the blocking rules were completely circumvented, with a state authority approaching a court and bypassing even the cursory requirement of a notice to the originator of the content.
Other instances present reasonable fears. Two notable instances are cited in defence of the blocking rules and in opposition to further natural justice safeguards. The first is the communal violence in Muzaffarnagar in 2013. The Uttar Pradesh government claimed that a video on a popular online video-sharing platform was responsible. However, multiple reports indicate the violence stemmed from a routine law-and-order problem that the local police failed to respond to effectively. This is corroborated by two prominent citizen inquiry reports. The second instance is of the exodus of people, ethnically from the northeastern states, from Bangalore in 2012. The reason for this, according to the state government, were morphed images circulated online. In this case, rather than reassuring the general public and ensuring law and order, a wide-ranging blocking order was issued that included websites that drew attention to the falsity of the images. In the tradition of well-intentioned government bungling that creates further panic, it even arranged for special trains to run from Bangalore to Guwahati. Clearly the solution to such problems is better policing of the streets — not of the internet. These two instances are certainly problematic and may provide legitimate ground to block websites. But the legal process followed lacks most natural justice safeguards.
Though this portion of the decision is unfortunate, the nature of the Shreya Singhal petitions being constitutional challenges is an important consideration. Most petitioners and their counsels asked for several provisions to be declared unconstitutional, believing they conflicted with our fundamental rights. Privately, though, many took a more conservative view, given the precedent of the SC, which has hesitated to take strong positions on freedom of speech. Constitutional challenges are high thresholds. The courts, despite the severe criticism of their expanding public roles, even today rarely strike down provisions of law. They presume legislation to be valid and also view reasonable restrictions as legal limits. Hence, until the law does not exceed these limits, it remains constitutional. In holding the blocking rules as constitutional, the court has commented only on their legality — not their desirability. The latter remains open for the legislature and civil society to consider.
The writer is a practising advocate in Delhi and appeared for the People’s Union for Civil Liberties in the Shreya Singhal petitions.