Free debate and expression in a digital and democratic India

(MainsGS2:Government policies and interventions for development in various sectors and issues arising out of their design and implementation.)

Context:

• In an order on January 20, 2023, the government used emergency powers under the Information Technology Rules, 2021 and Section 69A of the Information Technology Act, 2000 to direct Twitter and YouTube to disable access to the documentary within India and prevent its re-upload.

Concerns over natural justice:

• Natural justice is a fundamental principle in public law when decisions affect fundamental rights such as the freedom of speech. 
• The Supreme Court of India, in the case of Cricket Association of Bengal, recognised that, “[t]he right to receive and impart information is implicit in free speech”.
• Therefore, any restriction must ordinarily issue a show cause notice, provide the opportunity of defence to the author, and record reasons in an order that is made publicly. 
• Providing reasons allows for the author or publisher, as well as the recipient of the information, to seek judicial remedies and act as a check for constitutionally permitted censorship.

Contrary to practices:

• Many experts believe that such practice is contrary to the directions of the Supreme Court in the case of Shreya Singhal vs Union of India. 
• In the case it upheld that blocking powers under Section 69A subject to “reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition”. 
• However, blocking orders are marked as “secret” or “confidential”, then transmitted directly to service providers, making it difficult for the authors an opportunity of defence and the general public to challenge them.

Healthy to invite criticism:The blocking has been made under Rule 16(3) of the IT Rules and Section 69(A) of the IT Act, 2000 that allow for “emergency blocking”. 

• However, the term “emergency” itself is not legislatively defined, but following the dictionary meaning would mean “a dangerous situation requiring immediate action”. 
• It permits an expedited process that weakens the already minimal checks by bypassing a committee and also eliminating the opportunity to be heard. 
• These rules have been challenged in courts as in August 2021, the Bombay High Court, in a petition by The Leaflet and Nikhil Waghle, suspended Rules 9(1) and 9(3) that establish a code of ethics for online news platforms and a three-tier grievance redress mechanism headed by the central government. 
• In its interim order it counselled, “it is healthy to invite criticism of all those who are in public service for the nation to have structured growth”.

Undergone a radical change:

• The IT Rules first notified on April 11, 2011 by the Ministry of Electronics and IT (MeitY) have undergone a radical change. 
• This can be attributed to a centralisation of executive power rather than a rapid metamorphosis of the subject matter for regulation. 
• On February 25, 2021, the rules were amended drastically to increase government control over online platforms and news publishers. 
• Other changes included the creation of grievance officers for social media companies and traceability requirements to increase censorship and break privacy-protecting technologies such as encryption. 
• It also required news publishers to follow a vague moral code of self-censorship that permitted grievances to be escalated to the government  which led to stay orders by High Courts.
• On October 28, 2022, another set of amendments created a government censorship body sitting in appeal of all content moderated by social media companies.