Earlier this month, the Delhi High Court declined to entertain a Public Internet Litigation (PIL) challenging the constitutional validity of the notifications issued by the Government in August for blocking web pages hosting “inflammatory content” allegedly responsible for the triggering panic among the north-eastern community across India (see here and here). The Petitioners sought to quash the notifications issued on August 18, 19, 20 and 21 by the Department of Telecommunications directing ISPs to block over 300 web pages. Although the order of the court is unavailable, media reports suggest that the court refused to treat the Petitioners’ plea as a PIL on the ground that only the “affected parties,” such as the telecom service providers and internet service providers (ISPs), can approach the court. This raises questions on the locus standi of users to assert their right to freedom of speech and expression on the internet. This issue assumes particular importance, given that public interest litigation is deeply ingrained within the constitutional mechanism for the realization and protection of civil liberties.
Locus standi of users to defend right to free speech on the internet
The order of the Delhi High Court is based on the view that internet users themselves are not aggrieved parties from the blocking of these websites. This can only be accepted if these users do not use the internet as a platform to exercise their right to free speech. However, in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the Supreme Court recognized that right to freedom of speech and expression under Article 19 includes the right to receive and impart information irrespective of the medium. Internet is a medium for disseminating views as well as obtaining information, thus undoubtedly, users of the internet would have been affected by the blocking of websites. Such blocking directly impinges on their freedom to express themselves and access content on the internet, hence it is difficult to accept that internet users lacked the locus standi to challenge the blocking of URLs. Thus, the Delhi High Court order seems problematic since it amounts to denying internet users of their right to defend their right to freedom of speech and expression embodied in Article 19 of the Constitution.
Public interest litigation as an expansion of locus standi: Do internet users have sufficient interest?
Even if it is assumed that telecom service providers, ISPs and other intermediaries had to bear the direct brunt of the blocking and were therefore the aggrieved parties, do internet users also lack sufficient interest in the matter to be disallowed from filing a PIL? The concept of PIL is a well-accepted departure from the traditional rule of locus standi, as it expands the rule of standing by permitting parties not directly aggrieved to seek judicial redress. The Supreme Court in S.P. Gupta v. President of India affirmed that individuals who have not been directly aggrieved can move the court for protecting collective rights and public interest, provided they have sufficient interest to be accorded standing. The Petitioners in the present case were representing the interests of internet users and they certainly had sufficient interest in the matter as the blocking affected their exercise of free speech on the internet, hence their plea should have been treated as a PIL. It must also be pointed out that, earlier this year, the Kerala High Court has admitted a PIL filed by an internet user challenging the Information Technology (Intermediary Guidelines) Rules, 2011 (see here and here), hence, it would not be the first time that a case of this nature would be treated as a PIL. By not treating internet users as affected parties to challenge blocking of websites, the Delhi High Court has certainly taken an extremely restrictive view of the right to free speech on the internet.
Though government directions for blocking online content itself pose a grave threat to the constitutional guarantee of free speech, the order of the Delhi High Court only heightens concerns on the lack of protection accorded to the exercise of freedom of speech and expression on the internet. It has been reported that the Petitioners of the present case intend to appeal against the decision in the Supreme Court (see here). We can only hope that Supreme Court takes a different approach.
This post is only a preliminary analysis of the order as reported in the media. After a copy of the order is obtained, we will be exploring this issue in greater detail.