Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
Facebook: https://www.facebook.com/vpdalmia
X (Twitter): @vpdalmia
AND
Rajat Jain, Advocate
Email id: rajatjain@vaishlaw.com
Mobile No. 9953887311
LinkedIn: https://www.linkedin.com/in/rajat-jain-75772398/
Our constitution guarantees us some inalienable rights known as fundamental rights. Within legal and social structures, fundamental rights are of utmost importance. They create a framework of laws that limit the authority of the state, therefore averting arbitrary acts and protecting against any abuses of power. Furthermore, by outlawing discrimination and guaranteeing equitable access to opportunities and resources, fundamental rights advance social justice. One of the fundamental rights is Freedom to Speech and Expression enshrined under Article 19 of the Constitution. Article 19(1) provides citizen of India with freedom of speech under which in Article 19(1) (a) talks about freedom of speech and expression. These rights enshrined under Article 19 (1) are subject to reasonable restrictions given under Article 19 (2). "The grounds for reasonable restriction are "sovereignty and integrity of India, the 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."1
Freedom of speech and expression encapsulates the right to express one's thoughts freely without any coercion. One can express one's thoughts on websites, newspapers, audiences and various other platforms. The freedom to express oneself ensures the spirit of constitution and democracy is upheld in the country where its citizens' voices are heard.
This article is based on how recently websites have been blocked by the government under IT Laws, its impact on Article 19 and the court's stance on the issue. The recent blocking of websites like Hindutva Watch, and India Hate Lab by Ministry of Electronics and Information Technology ("MeitY") bring the issue of blocking website on forefront and how courts have dealt with the problem.
Legal Framework on Website Blocking
In India, the Information Technology Act of 2000 (referred to as the "IT Act") is the main legal framework governing the digital realm. This legislation outlines two avenues for blocking websites, apps, and social media accounts.
Firstly, under Section 69A of the IT Act, the Central Government has the authority to restrict access to online content, including websites, apps, and social media profiles. For instance, the Central Government utilized this provision to ban the TikTok Mobile App, alongside several other apps, in India.
Secondly, Section 79 of the IT Act, commonly known as the safe harbor provision, mandates intermediaries to remove content in compliance with regulations outlined in the IT Act, as well as directives from the government and judiciary. Presently, decision-making authority regarding such matters lies within the executive branch and the judiciary.
Analysis of section 69A- "As per Section 69A of the IT Act, the authority to issue directions for blocking public access of any information through any computer resource lies with the Central Government or any officer specially authorized by it in this behalf. Section 69A (1) of the IT Act lays down the following basis upon which the Central Government or any of its officer specially authorized by it in this behalf may issue directions for blocking for public access of any information through any computer resource, if the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient to do so in the interest of:
- a) Sovereignty and integrity of India
- b) Defense of India
- c) Security of the State
- d) Friendly relations with foreign states or public order
- e) For preventing incitement to the commission of any cognizable offence relating to above"2
Section 69A (1) of the IT Act also lays down that when any of the above conditions are fulfilled, the Central Government or the concerned officer may by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource, subject to the provisions of sub-section (2) for reasons to be recorded in writing. Under sub-section (2) of Section 69A of The IT Act states that the "procedure and safeguards subject to which such blocking for access by the public may be done shall be prescribed."3
These procedures and safeguards have been provided under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. From Rule 8 indicates that, "the Designated Officer shall direct any agency of the Government or the intermediary to block the offending information generated, transmitted, received, stored or hosted in their computer resource for public access within the time limit specified in the direction."4 The entire process as laid down under the IT Act and IT Rules must be followed before issuing directions. Failure to follow the prescribed process and failure to provide grounds for blocking the subject IP address and following the principles of natural justice ultimately leads to arbitrariness.
Equality is an antithesis to arbitrary act of the state and cannot be justified in any case
The subject of blocking IP addresses without any prior notice violates principles of natural justice which is the minimum protection given to a person and exists independently even in the absence of Article 14 of the Constitution of India. Article 14 of the Constitution of India does not create the principles of natural justice but rather it is their constitutional guardian. "As per the news reports in the month of November 2019, a reply filed by the Ministry of Electronics & Information Technology in Lok Sabha showed that there has been a 442% rise in the number of URLs blocked in India in 2019, compared to three years ago in 2016. The said reply clearly shows that the number of URLs ordered for blocking increased from 633 in the year 2016 to 3433 till 31st October 2019."5 This shows that mere blocking of websites without prior notice and reason for the blocking comes under the purview of arbitrary act initiated by the government to curb the freedom of speech and expression. The law cannot be used at their whims to fulfil their purpose; the conditions and regulations should be duly followed.
Avenues available for the aggrieved party
In most of the cases of the blocking of website, the person who is owning the website is not given notice as envisaged under Rule 8 of the IT Blocking Rules. The aggrieved owners of such websites are not even aware about the blocking of website or reasons of such blocking and are in a fix. In such a scenario, the aggrieved person should follow the following actions:
- Filing of RTI Applications with the relevant department to ascertain whether there is any blocking order or not.
- Filing of representation before the relevant department.
- Even though filing of the representation before the department concerned is a futile exercise as the government in most cases fails to even acknowledge or respond to such representation, still it is advisable to file such representation.
- If the above actions do not yield any positive result, the only recourse left with the aggrieved person is to invoke the writ jurisdiction of the Courts assailing the said blocking orders. The order passed for blocking of website is an executive/ quasi-judicial action and the same is open to judicial review.
- In the case of Karti P. Chidambaram vs Bureau of Immigration6, "the Hon'ble Madras High Court has held that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under Article 226 of the Constitution of India."7
In the writ, the aggrieved person can request the Court to direct the government to furnish the reasons for blocking of the website and for setting aside such blocking orders on merits as well as for non-adherence of natural justice. During the writ petition's pendency, in some cases, the government agrees to withdraw such blocking orders to avoid judicial scrutiny.
As per the prevailing trend, the government also agrees to give a post-decisional hearing to the aggrieved person, including an opportunity to take corrective measures, if found necessary, though no such mechanism has been provided under the IT Blocking Rules. Reference in this regard may be made to the orders passed in the cases of Tanul Thakur vs. Union of India & Ors.,8Raqib Hameed vs. Union of India represented by the Secretary Ministry of Electronics and Information Technology & Anr.9
Recommendation-
- The current procedure for online content blocking outlined in Section 69A of the Information Technology Act, 2000, lacks transparency and oversight mechanisms. The absence of public disclosure of orders prevents affected individuals from contesting them, thereby undermining principles of fairness. Furthermore, the Review Committee consists entirely of executive members, offering little to no genuine oversight on executive decisions
- Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules mandates the confidentiality of all information pertaining to web content blocking. However, this provision is deemed unconstitutional and beyond the scope of Section 69A of the Information Technology Act, 2000. Rule 16 violates principles of natural justice by withholding orders from public scrutiny, thereby denying individuals the opportunity to challenge website blocking decisions. Additionally, it contradicts the interpretation given by the Supreme Court of India in the case ofShreya Singhal v. Union of Indi10
Conclusion-
The law surrounding IP address blocking is in its nascent stages
and the legal landscape needs to evolve to keep up with the fast
pace at which technology is growing. There are no two views about
the dangers of misinformation and hate speech or the role of the
internet in acting as a convenient medium for its spread. But at
the same time, it is not disputed that the internet has proved
itself to be invaluable as a platform for free speech and has
evolved into a hub of opinions.
In view of this, there is a necessity to have mechanisms such as
Information Technology Act, 2000 and Information Technology
(Procedure and Safeguards for Blocking for Access of Information by
Public) Rules, 2009 which allow the government to curb misleading
information that might incite the public or cause harm, but the
same needs to be balanced against the user's freedom to speech
and expression. Regulation of content online needs to be done with
utmost transparency keeping in mind the constitutional principles
and respect for individual rights.
Reference-
Finding 404: A report on website blocking in India 2022
Footnotes
1 Article 19 (2), Constitution of India.
2 Section 69A (1) of the IT Act.
3 Section 69A of The IT Act.
4 Rule 8 of Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
5 https://timesofindia.indiatimes.com/india/442-rise-in-the-number-of-urlsblockedinindia/articleshow/72177348.cms
6 2018(3) RCR(Criminal)874
7 Ibid.
8 W.P.(C) 13037/2019.
9 W.P.(C) 5820/2024.
10 AIR 2015 SUPREME COURT 1523.
© 2024, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy
Marg New Delhi-110001 (India).
The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.