SMS Blocks: Revisiting the Idea of “Reasonable Restrictions” and Proportionate Alternatives

In a previous post, Malavika took issue with the lack of transparency surrounding the announcement and implementation of the ban on bulk SMSs issued by the Ministry of Home Affairs. In that post she hinted at certain irregularities in the implementation of the order and its impact on Article 14. I intend to further that analysis by paying closer attention to problems concerning enforcement, and suggest certain alternatives, that would have anchored the order within Article 19(2). Towards that end, this post begins with clarifying the relationship between Article 19(1)(a) and 19(2). I then proceed to suggest certain alternatives that the government should have considered, which could have possibly rehabilitated the questionable nature of the ban.

The Right and its regulation

The constitutionally guaranteed right to freedom of speech and expression can only be regulated on the basis of the enumerated grounds under Article 19(2). From its inception, the Supreme Court has strictly interpreted these restrictions, by regulating any form of pre-censorship and requiring compelling reasons, which do not betray the grounds under Article 19(2). Even if a citizen were to have a right under Article 19(1)(a), the performance of that right could be regulated, if the threshold requirements under Article 19(2) are duly met. This relation however does not suggest, that once the state has reason to regulate the right to speech and expression, that it may do so in an unbridled fashion. The Supreme Court has clarified that any enacted regulation must bear a close and reasoned nexus to the harm being claimed.

Accordingly, the duty of the state to act constitutionally operates at two levels. First, the state must demonstrate the ensuing situation meets the threshold under Article 19(2) and second, the implementation of such regulation must be reasonable and related to the harm sought to be remedied. Viewed from this perspective the duty to regulate speech and expression is a continuing one, as the satisfaction of the first requirement, without the second, would render the regulation unconstitutional.

A failure to discharge this continuing obligation is best highlighted in the recent ban on bulk SMSs. Although the order is well meaning insofar as it is intended to dislodge the persecution of a particular community, the manner of its implementation raises an array of constitutional questions. For instance: was there any actual need to implement the ban all across the country? Could the use of content filters circumvent the harsh limit of 5 or 20 SMSs a day? These questions go to the very root of the order and expose serious procedural improprieties.

Procedural Concerns and Alternatives

In the brief discussion to follow I highlight two areas of concern and suggest certain alternatives that carry the potential of altering the legal status of the order. These suggestions not only deal with the technological aspects of the ban, but also its constitutional ramifications.

[A] All India Ban.

Excerpts from the order disclose that the Ministry of Home Affairs directed telecom operators to implement the ban in all states and union territories in India. In doing so, the government attempted to adopt a common approach to a situation that was only ensuing in certain states. Instead, it would have been far more prudent to implement the ban in a more localized manner, only in states where inflammatory and threatening content was being circulated via SMSs. Apart from the obvious benefits of having a concentrated and tailored response, a state specific ban would also sidestep the inconvenience caused to mobile users in states where no such threat was present. For instance, states such as Gujarat, Rajasthan & Uttar Pradesh (and more) exhibited no threat to the North Eastern community. Accordingly, in such states the basis of such a ban does not exist under Article 19(2), and questions the belief that “public order” situations exist uniformly throughout the country. The All India nature of the ban reminds us, that not only do the means of regulation require constitutional scrutiny, but also the scope of such regulation. Overbroad regulation that does not have a well thought scope and reach, can just as easily offend constitutional limitations.

[B] Content Filters

Commentators have observed that the absence of content filters in the implementation of the order, defeats the very purpose of the ban. Under the ban, users were allowed to only send 5 messages initially and then 20 messages. But in being allowed to send such messages, there was no regulation of the content of these messages. As a result, even if I were allowed to send five messages, these messages could still carry inflammatory content and could be directed towards a particular community. Consequently, notwithstanding the limitation on the number of messages, I would still have the means of inciting fear and panic: which were the sole reasons for the issuance of the order.

The use of content filters could have had two useful impacts. First, it would have made the ban more effective, by regulating inflammatory content even within the allotted number of messages. Second, the use of content filters could arguably have substituted the need for having a strict limit on the number of messages, or could have relaxed the limit further. This is an important consideration, as many users were highly inconvenienced by the strict limit on the number of daily messages.

These criticisms are not intended to nit pick at government action, but rather demonstrate the issues involved in regulating contemporary means of communication, in a constitutional fashion. In many situations the intentions of the state are well meaning, but the methods through which such concern is realized, often bypass the constitutional limits within which such regulation is expected to occur. In doing so, not only is the purpose of constitutional limitations undermined, but also the actions of the state are called into question.

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