Bleeping out your Freedom? Broadcast Regulation for General Entertainment Channels

The post that follows is a Guest Post by Nivedita Saksena, a Fourth Year student at NUJS.

The censorship of content on Indian General Entertainment Channels (‘GECs’) has been the subject of much discussion and even ridicule recently, with a spate of orders and warnings (see here and here) being passed by regulatory authorities against television channels for broadcasting content that did not match up to standards. The television channels too, in turn, have resorted to self-censorship, which has resulted in many shows being reduced to incoherent and unfunny versions of themselves. Comedy Central, a television channel dedicated to (as the name suggests) telecasting comedic content, could afford to poke fun at this practice before it too came under the scanner of the authorities, and was recently temporarily pulled off the air.

This post analyses the process through which content on GECs is regulated. Some problems that have arisen in this process will be highlighted through a discussion of the Comedy Central order. These include the existence of conflicting regulatory mechanisms and the subjectivity of the standards that are applied while passing these orders.

How Your Favourite Shows Are Regulated

Given the failure of Parliament to establish a central authority to regulate broadcasting in the country, televised content is currently governed by the Cable Television Networks (Regulation) Act, 1995 (‘CTNRA’). Under Section 20 of this Act, the Central Government is given the power to prohibit the operation of a cable television network in the public interest on certain grounds (the sovereignty or integrity of India, the security of India, friendly relations of India with any foreign state, public order, decency or morality). It may also impose these restrictions if it considers that a programme shown was not in conformity with the Program Code contained in Section 5 (read with Rule 6 of the Cable Television Networks Rules, 1994 (‘CTN Rules’)). It has also been given certain powers under the Uplinking Guidelines and Downlinking Guidelines to refuse to grant licenses if compliance with the Program Code is not ensured.

To implement these provisions, an Inter-Ministerial Committee (‘IMC’) chaired by the Additional Secretary of the Ministry of Information and Broadcasting (‘the Ministry’) and composed of representatives from various other government ministries has been set up. The IMC can only make recommendations in relation to decisions taken by the Ministry, which usually issues show cause notices, warnings, advisories or might ask the channel to scroll an apology. Occasionally, a channel might be temporarily or permanently taken off the air, depending on the gravity of the violation. Monitoring is carried out through the Electronic Media Monitoring Centre, which records up to 300 channels 24X7 to spot violations and preserve records of the same. Other channels are not directly monitored, but the Ministry may take cognizance if any violations are reported.

Additionally, the Indian Broadcasting Federation has also set up a mechanism for self-regulation through the Broadcasting Content Complaints Council (‘BCCC’) which addresses complaints through a two-tier process. It is guided by the Content Code and Certification Rules, 2011.

The Comedy Central Order

In June 2012, the Ministry issued a Show Cause Notice (‘SCN’) to the channel Comedy Central with respect to two programmes broadcast by it: ‘Comedy Central Presents’ and ‘Popcorn TV’. It stated that these shows violated Rules 6(1)(a) [offence against good taste and decency], 6(1)(d) [obscene, defamatory material, innuendos and half-truths], 6(1)(k) [denigration of women], 6(1)(o) [content unsuited for unrestricted public exhibition] and 6(5) [telecast timings for content unsuitable for child viewers] of the CTN Rules.

In its response, the channel stated that a self-regulatory mechanism was already in place and that it was the correct forum to address these concerns. They had accordingly forwarded a copy of the SCN to the BCCC for its consideration and the Ministry should raise any further concerns with the BCCC itself. The BCCC, after examining the episodes, was of the opinion that its content was objectionable and that the channel must be careful about airing similar content in the future. However, these violations were found to be the result of a genuine operational error and given the written assurance of the channel to be more careful in the future, they did not recommend any punitive action.

However, the IMC also simultaneously took up the matter. It determined that the channel had violated the provisions mentioned in the SCN and recommended that the transmission of the channel should not be permitted for 10 days. An order to this effect was subsequently passed by the Ministry in May 2013.

Issues Arising Due to Parallel Regulatory Mechanisms

The existence of two parallel regulatory mechanisms (BCCC and IMC) gives rise to some confusion with respect to the procedure for complaint redressal and the hierarchy of orders/directives passed by them. This issue also arose with the Comedy Central Order, and has been discussed below.

Viacom 18 Media Pvt. Ltd., which owns Comedy Central, challenged this order before the Delhi High Court. They raised two main contentions. First, they argued that it was mandatory for the Ministry to consult the BCCC before passing such an order. For this, it relied on the decision of the Delhi High Court in Indraprastha People v. Union of India where it was held that the Ministry would have to treat the decisions of the BCCC as ‘the foundation to take appropriate action and pass necessary directions as also orders against the offender’ given that they would otherwise lack the requisite statutory authority to be legally implementable. In this case, since the BCCC had not recommended a penalty, the same could not be unilaterally imposed by the Ministry. Second, they argued that the quantum of punishment imposed was disproportionate to the alleged violation.

A single judge of the Delhi High Court dismissed the petition, stating that under Clause 10.2 of the Uplinking Policy Guidelines, consultation with the BCCC was mandatory only to the extent of determining whether a violation of the Program Code had taken place. Once a violation had been established, the Ministry could determine the quantum of punishment on its own. In this instance, the question of a conflict between the findings of the IMC and the BCCC did not arise since the latter had also concluded that the impugned content was objectionable. As a result of the decision, the IMC can now unilaterally decide the quantum of punishment, and the order cannot be set aside for a lack of consultation with the BCCC. A reading of this order suggests that if the BCCC were to find that any show was not objectionable, and a conflict between the findings of the two bodies as to a violation was to arise, it would not be possible for the Ministry to take any action in this regard, except under section 20(1) of the CTNRA.

The quantum of punishment was considered appropriate considering that fact that under the Uplinking Guidelines, the Ministry ordinarily has powers to ban a channel for 30 days for the first violation.

The Court also examined the decision in Star India Pvt. Ltd. v. Union of India, wherein a warning had been issued to the petitioners with respect to the show ‘Sach ka Saamna’. It observed that in this case, since the Court had upheld the government action (that had been taken without consulting the BCCC), it had impliedly made such a consultation a non-mandatory requirement. However, in Star India, the Court had clearly stated that such a consultation would not have been possible as the BCCC had not been constituted yet. In future cases, however, the BCCC was to be the first forum to be approached as it was a broad-based expert body, as opposed to the IMC which was a body composed only of government bureaucrats. The BCCC may further approach the Ministry for appropriate legal action in case of non-compliance with its directives.

This ban was later stayed by a division bench of the High Court on an assurance that the impugned content will not be telecast in the future.

Subjectivity of the Findings

This case also highlights the issue of subjectivity with respect to the content which is the subject matter of such orders. The court itself acknowledges this problem, and attempts to draw a distinction between content that was ‘ex facie vulgar and obscene’ and content where ‘more than one views [sic] may be possible with respect to their nature’. It opines that if the content falls in the former category, failure to consult with the BCCC would not vitiate a penalty, and it would also be possible for the court to pass an order to restrict the telecast of such content. But for content in the latter category, examination by an ‘independent broad-based body’ should be necessary. But the question still remains: who determines whether a show was ex facie vulgar or if multiple opinions were possible with respect to it?

If one were to examine the impugned content in this case itself, this problem becomes very apparent. According to the court, it fell in the ‘ex facie vulgar and obscene’ category. But the first video (from ‘Comedy Central Presents’), for example, would only seem vulgar if it was seen in isolation from its context. Some familiarity with the work of the comedian Jon Lajoie would demonstrate that he often uses parody in his comedy, as has clearly been employed here. Further, even though the second video (from ‘Popcorn TV’) may be crass, it is not graphic in nature. It does not portray real women, but only a ludicrous disproportionate blow-up doll. The subjects of the prank are aware of its nature at all times.

The Comedy Central order, then, is our latest reminder for the need to ensure transparency and non-arbitrariness in Indian broadcasting regulation.

On the Unfortunate Rise of the Indian SLAPP Suit

It is not news in this country when the law or other institutions of the state, are used as tools by which to threaten or intimidate citizens into submission to a particular course of action or to a particular point of view. Unfortunate as that is, today’s post will deal with the rising incidence of SLAPP suits, an abuse of the adjudicatory process that is also a feature in a number of jurisdictions elsewhere.

Our interest in them arises from two sources. The first is the particular damage that this device is able to do free speech. Its effects were quite picturesquely described in the following terms by the Delhi High Court in M/S. Crop Care Federation Of India v. Rajasthan Patrika (Pvt) Ltd. “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”  [Rajasthan Patrika in turn borrowed this language from Gordon v. Marrone, a case in the New York Supreme Court.] The second is this piece of news.

About the Phenomenon

The term “Strategic Lawsuits Against Public Participation” is rather self-explanatory. Nevertheless, some of its features bear the explicit articulation:

First, there is always, and necessarily, a power imbalance between the parties in such cases: the plaintiff or complainant will always have greater and often disproportionately greater access to the resources necessary to enter and sustain a litigation, in addition to social, political or corporate power. A simple shorthand for SLAPP suits will always be Deep Pockets v. Free Expression. And so it has been in India, as this article evidences.

Second, there is always one object: to intimidate a target into silence or apology by way of legal action or the threat of it. SLAPPs are a win-win play for those that employ them: targets are likely to bow to the pressure given that they will not have access to the resources to mount a legal defense. Even where the defendants’ (relatively scarce) resources are diverted to the defense of their speech, even assuming that the threat and costs of litigation, the civil damages and/or penal consequences do not intimidate them, their opportunity cost will be considerably higher than that of the other party. Given the ordinary rigours of the adjudicatory process and the ubiquitous delays associated with it in India, however, the harassment function of the SLAPP is always achieved.

Third, SLAPP suits are always characterized by a flimsy, frivolous or even non-existent cause of action. They will have done their damage irrespective of, and before, the outcome of the suit is decided. The question of legal tenability, and in these cases, its absence is really not one of any relevance. The real damage is done by forcing defendants to bear the trouble (monetary and otherwise) with preparing and mounting the legal response/defense itself, rather than by the litigation’s ultimate success or failure. A little amusing then that in the latest instance, which I describe later in this post, it is a law student, presently in law school and writing for a legal blog who finds herself on the receiving end of such threats.

Defamation SLAPPs

Defamation is a classic tool by which contrary opinions are sought to be silenced by those in (political, social or corporate) power. Rajeev Dhavan argues here that defamation is becoming an increasingly popular tool by which the “politics of exposé” and whistleblowers participating in it are being threatened. [SLAPPs in India have arisen on the back of other causes of action as well. See, for instance, the case of S. Khushboo v. Kanniammal and Frontline discussing it.] Lawrence Liang details a number of older instances in which defamation has been used in Indian courts to silence speech here.

Much more recently, Tata Sons Ltd. v. Greenpeace International, involved intellectual property and defamation claims in a game designed to bring attention to the threat to Olive Ridley turtles from developmental activity in Orissa. The IIPM saga that rose to prominence in February this year is another instance of such litigation. It is also one that carries the added ignominy that a university, whose function one would presume is to foster critical thinking and the ability to constructively respond to criticism, would sue for defamation against criticism and use the state apparatus to employ opaque means by which to silence the allegedly offending content online [see here and here]. IIPM also demonstrates how SLAPPs will involve what have been called “creative ways” to abuse of process: more than one suit can be filed, and they can be filed in more than one jurisdiction or in jurisdictions in which it is difficult for the target of the suit to appear or defend him or herself.

On Attempts at Silencing Academic Opinion

While the Activist v. Corporation trope is by now a tired one, it appears that the incidence of SLAPP proceedings, both civil and criminal, against commentators and academics are on the rise:

Ajay Shah’s case has been a well-documented one [see here and here], and one in which the Bombay High Court did not appear to appreciate the SLAPP dynamic. Closer to home, Shamnad Basheer [see here and here] a professor at NUJS and founder of SpicyIP saw a defamation SLAPP suit for what appears to be an exercise in only academic analysis.

As of the 21^st of this month, it was reported that a student contributor at the same blog, Aparajita Lath faces similarly suspect allegations of defamation from a newspaper [see here and here]. Here is a case not of Activist v. Corporation or Whistleblower v. Government, but of Academic Opinion v. Press. There is a special and truly unfortunate irony in the press having recourse to tools like the defamation suit, and even more egregiously, the criminal complaint.

Why We Worry

A number of rights of the target are ordinarily affected by SLAPP suits. In what was a significant case for the United Kingdom involving a defamation suit brought by McDonald’s against two authors of a pamphlet criticizing it, the European Court of Human Rights (‘ECtHR’) recognized in Steel and Morris v. United Kingdom a number of the following rights:

First, there is the right to free expression itself. Violations of this right would arise on two levels, although the second may not be actionable. First, there is the right of the defendant to the SLAPP suit. Steel and Morris affirmed that the fact that the defendants to the defamation suit were not journalists did not mean that the scope of their free speech protection would differ [¶89]. Instead, it held that “the limits of acceptable criticism” where “large public companies” were concerned was wider than those that would otherwise apply [¶ 94]. India’s Supreme Court has, in one notable instance, disagreed on the proposition that bloggers should have similar rights to journalists. Next, there is the chilling effect: others placed similarly to the targets of SLAPP suits would self-censor to avoid legal retaliation for their views and the significant cost of defending themselves.

The importance of Steel and Morris however comes from this latter set of holdings. The ECtHR found that the right to fair trial, in civil and criminal cases, which included the right of access to court and to justice presumed an “equality of arms” as between contesting parties [¶ 59]. It held to this effect on the understanding that European Convention on Human Rights, the underlying rights instrument, was a guarantee of practical and effective rights. In the circumstances of that case, it found that since the financial disadvantage of the defendants in the defamation suit disallowed them the opportunity to mount an effective defence, there was a clear inequality of arms with McDonald’s that rendered the trial unfair for the purpose of Convention Article 6 (1) [¶72].

The IIPM blocks add a further dimension to the problem. When the content complained against is online, India’s lack of clear legal principles to determine, and more crucially limit, where the cause of action will have arisen and can be tried will only exacerbate the blogger’s situation, given the arguably global spread of an audience for online content.

A final point about this trend, particularly as it relates to silencing academic comment, is that it is a dangerous one, and one against which we must all speak out: these cases, in which the challenged content offers studied comment against the powers that be, will be a good acid test for the strength of our speech protections as they fall squarely within the class of speech which constitutional protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a) guarantee entails.

More on this in a second post.

Disclosures: Aparajita Lath is a student of NUJS, as are a number of us on the Free Speech Initiative. In addition, I serve on the Board of Editors of the NUJS Law Review along with her. This post, however, is intended to reflect on the growing (and increasingly visible) incidence of the SLAPP suit and its effect on our freedoms to comment and criticize and to have access to articulations of the contrarian view.

Ban on Adult Films on Television: Are Broadcasters Legally Permitted to Do So?

The issue of broadcasting films certified ‘A’ by the Central Board of Film Certificate (‘CBFC’) has been contentious for quite some time now. Recently, four major broadcasters have decided to completely prohibit the telecast of such films. (See here and here) While the issue of desirability of such censorship has already received attention (see here), this post will focus on the legislative basis for permitting such a move.

The Cable Television Networks Rules, 1994 (‘CTN’) framed under the Cable Television Networks (Regulation) Ordinance, 1994 provide for the relevant statutory basis for censorship.

Rule 6(1)(o) of the CTN provides for the Programme Code and states that no programme should be carried in the cable service which contravenes the provisions of the Cinematograph Act, 1952 (‘Cinematograph Act’) and is not suitable for unrestricted public exhibition. The explanation provided to the section states that the term “unrestricted public exhibition” shall have the same meaning as assigned to it under the Cinematograph Act.

Section 4 of the Cinematograph Act states that if any person desires to exhibit any film, then such film is required to be certified by the CBFC. Upon examination, the CBFC can certify the film as follows:

1. It can be certified for unrestricted public exhibition;
2. It can be certified for exhibition that is restricted only to adults or any particular class of persons;
3. The film can be refused sanction for public exhibition all together.

A bare reading of Section 4, Cinematograph Act shows that a distinction is made between films restricted for exhibition to adults only and films that can be refused sanction for public exhibition all together. However, Rule 6(1)(o) of the CTN prohibits the exhibition of movies that are not suitable for “unrestricted public exhibition”. In this context, the scope of the term “unrestricted public exhibition” needs to be determined.

The explanation provided under the CTN states that reference must be made to the Cinematograph Act to determine the meaning of the term “unrestricted public exhibition”. A strict interpretation would cover only movies sanctioned under Section 4(1)(i) of the Cinematograph Act whereby movies are certified as such for ‘unrestricted public exhibition’.

However, such an interpretation would defeat the distinction made under the Cinematograph Act for movies that are restricted for exhibition to adults or specified class and movies that can be refused public exhibition all together. Such an interpretation would mean that even films that are restricted in its exhibition to adults/specific group of persons would be prohibited from being telecasted. Since the legislature has made a distinction between those films that cannot be certified for viewing altogether and those which are restricted to certain persons, then it means that the films falling in the latter category are meant for public exhibition. However, if such films are not included within the ambit of ‘unrestricted public restriction’, then they would be prohibited from being shown to the public which in effect, goes against the purpose of certifying them and distinguishing them from films that have been refused certification all together. Thus, a more meaningful and harmonious interpretation would be to understand the prohibition contained in Rule 6(1)(o) CTN Rules to cover only films that are refused sanction for exhibition all together.

Interestingly, in the case of Pratibha Naitthani v. Union of India, the issue before the Bombay High Court was whether adult films certified as such by the CBFC can be telecasted by the cable operators. After referring to Section 4 and Rule 6(1)(o), the Court adopted the narrow approach and held that the term ‘unrestricted public exhibition’ would cover only those movies that have been certified as such under Section 4(1)(i), Cinematograph Act.

Presently, one can say that in order to comply with CTN’s mandate to telecast only programmes  that are suitable for ‘unrestricted public exhibition’, the broadcasters are justified in prohibiting the telecast of adult movies as it is difficult to restrict the ‘adult movies’ to only adult viewers on television. This reflects a simple technological adjustment to comply with the CTN’s mandate whereby adult movies that cannot be ‘restricted’ to only adults, are all together prohibited from telecast as they are not fit for ‘unrestricted public exhibition’. However, this argument shall also be hit by the the logic of creating the distinction between adult movies and movies prohibited from exhibition all together. As identified above, there is a conflict between the provisions of the CTN and Cinematograph Act which, in turn, calls for a clarification or a legislative amendment.

Thus, so far, the broadcasters can justify their stance under the provisions of Rule 6, CTN though the film producers also can make a strong case by taking the benefit of the conflict between the provisions of CTN and Cinematograph Act.

 

Proposed Amendments to the Indecent Representation of Women’s Act

Few weeks ago media reports emerged that the union cabinet had approved amendments to the Indecent Representation of Women’s Act, 1986 (IRWA). The IRWA was enacted with a view to penalize indecent portrayal of women in the mass communication and accordingly prescribes penalties (in terms of fines and imprisonment) for derogatory and indecent representation of women.

The amendment seeks primarily to introduce three key changes: first, widen the scope of the act to cover electronic communication and/or publication. Second, to increase the penalties by increasing the fine to between Rs. 50,000 to Rs. 1,00,000 for first time offenders and Rs. 1,00,000 to Rs. 5,00,000 for repeat offender. Those found guilty under the IRWA could also face a maximum jail term of three years and jail terms for repeat offenders could range from two to seven years. Third, police officers above a certain grade would have the power to carry out search and seizure in relation to any offending material, in addition to the power of state/central government officers.

Although the text of the actual amendment is not publicly available, certain preliminary issues deserve to be highlighted. First, it is interesting to note that there seems to be a discrepancy between the recommendations of the National Commission of Women (NCW) and the final proposal. The NCW suggested a much lighter penalty both in terms of a fine and jail term, in comparison to the final proposal. For instance, the NCW suggested a fine of Rs. 10,000 (for first time offenders) and Rs. 50,000 – 5,00,000 (for repeat offenders). Notably, imprisonment is excluded from first time offenders and a jail term ranging between six months and five years is suggested for repeat offenders.

Second, many representatives from the advertising industry have been critical of the amendment, stating that it might lead to over-censorship, since the focus of the regulatory intervention is based on loosely defined concepts such as “indecent”. These criticisms have also drawn attention to the redundancy of the amendment, as the objectives sought to be achieved could have been addressed under the existing Information Technology Act, 2000.

Third, the official government press release reveals certain interesting motivations behind the amendment. It draws specific attention to the need for greater regulation over virtual communication, as existing laws fail to adequately address emerging challenges in online activity. I think this is a worrisome situation, as state officials seem to think that regulation of new communication can be achieved by merely amending old laws. Not only is this ineffective from a regulatory perspective, but also problematic as it may lead to stifling of legitimate speech.

Given the slow pace of our parliamentary process, I think that the proposed amendments are worth tracking, specifically paying attention to what the end product might be.

Update: IMI Files Petition in Kerala High Court

The Intermediary Guidelines, 2011 and IT (Procedure and Safeguards for Blocking for access of Information by Public) Rules, 2009 are currently being challenged before the Kerala High Court in Shojan Jacob v. Union of India. The Indian Music Industry (a representative body of the music industry) has just filed a petition in support of the Rules. Media reports suggest that the state is yet to file its reply before the Kerala High Court.

The Petition challenging the Rules can be accessed here.

The Petition on behalf of IMI can be accessed here.

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.

Transparency in the Ban on Bulk Messages

Over the last fortnight, there were media reports, as well as information from service providers informing us that bulk SMSs and MMSs were banned for 15 days, until August 30. Under directions from the Central Government, originally, users were only permitted to send 5 messages at once, and a few days later, this number was increased to 20. The order bans bulk messages, which should imply that it is a cap on the number of messages sent simultaneously, although this was not made clear in the order, and has, consequently, impacted implementation of the order, as I will discuss later. The order was issued by the Ministry of Home Affairs, and was to be implemented by the Department of Telecom, through a directive sent to service providers. A copy of the order has not been made available on the internet; there is only an excerpt from the first order available here. This excerpt shows no reasons attached, leaving us to assume from media reports, that the order is a consequence of the spate of violence directed at Indian citizens from the north-east.

Legal validity of the order

Executive orders, such as this one, are constitutionally valid, where they meet two broad conditions. The first is that the power to make such an order vests with the Executive, and in this case, with the Ministry of Home Affairs, and the Department of Telecom. The second condition is that the order should not violate fundamental rights under Part III of the Constitution. The relative ambiguity surrounding the direction to ban bulk messages for a fortnight suggests the order may fail to meet both these conditions, and so they would both be looked at in some detail.

Competence to make such an order

Since the copy of the order that is available does not disclose the authority under which/in exercise of which the government issued such an order, we would have to assume (since it is an incomplete copy) that it comes from the broad powers given to the Central Government to issue orders under the Indian Telegraph Act, 1885, including the power to make rules to govern the use of telegraphs and to prevent the transmission of certain telegraphs in the interest of public safety. The Ministry of Home Affairs and the Department of Telecom would both be considered Central Government within the purview of this Act.

Compatibility with Fundamental Rights

The order has had an impact on the freedom of speech of citizens generally, by curbing their right to communicate without restrictions. There were also specific classes of persons who were affected more than others: telemarketers, whose right to engage in commercial speech is protected, as well as their freedom of trade and occupation; in several other instances, the order impacted the ability of citizens to communicate with each other. One significant problem with the order was in its implementation, with some service providers being technically unable to implement the ban, while some others implemented it incorrectly, leading to the ban being imposed not on simultaneous messaging, but on the availability of the service all day. Another serious problem was that the ban was only being imposed on pre-paid customers, and not on post-paid ones, thereby creating different classes of consumers, who were treated differently. These appear to be a direct consequence of lack of clarity in the order itself, and a lack of oversight in the technological implementation, and not due to the fact of the ban itself. If the aim of the order was merely to curb hate messages which induced fear in an entire community, then creating a difference in merely the implementation, between categories of customers of service providers, does not flow from the reasons behind imposing the ban in bulk messages.

The ban clearly impacts the freedom of speech, and can only be constitutionally upheld, it if were to fall within the restrictions laid out in Article 19(2) of the Constitution. It appears to me that the ban can be upheld on the grounds of public order considerations which it seeks to meet. An additional requirement which exists with these restrictions is that of proportionality to the harm that it attempts to control against: the restriction would have to strike a proper balance between the right to freedom of speech and expression, and the restrictions imposed due to social control. I believe that the order, if read and implemented strictly, would meet this requirement, given the specific time frame in which it was to apply, and that it allowed bulk messages to be sent as well, and only reduced the number which could be sent.

The problem with these orders, however, lies in their lack of transparency. For the purposes of this argument, I would define transparency as a lack of communication to the general public as a result of unavailability of the order. Our only source of information is secondary: to the limited extent that it is being reported by the media, and the actual inconvenience that the public faced while the ban was in place. What little information we have suggests that the order was only communicated to service providers, which should not be the procedure which was followed. Ideally, the orders sent to individual service providers should have been based on a rule which was made public, since a long standing principle of delegated legislation, such as orders and directives such as these, is that they should be published in the Official Gazette. The absence of procedural safeguards would suggest that the reasonableness standard in Article 19(2) has not been met.

Additionally, all laws, orders and rules under the Indian Constitution should meet the equality standard under Article 14, which requires that there should be no arbitrariness in the law. Arbitrariness, the Supreme Court has said, is antithetical to equality, and that the equality clause in the Constitution is intended to prevent arbitrary and capricious actions of the Executive. This requirement of non-arbitrariness also extends equally, to procedural and substantive orders and rules. When a question of fundamental rights is involved, the Supreme Court has always interpreted rights broadly, and restrictions narrowly, so as to allow maximum enjoyment. This model, when applied here, would also require non-arbitrariness to be read broadly. Thus the failure on the part of the Government to make the orders public would imply the absence of transparency that these orders exhibit also shows their arbitrariness, and could easily be contested as violations of the constitutional provisions on equality.

Media reports suggested that although it was the Ministry of Home Affairs which had issued the order, it was being implemented through directives issued by the Department of Telecom. A nationwide ban on regular services, when effected, should be properly implemented and overseen by the designated authority, which is assumed to have the technical awareness to ensure that in implementation, its mandate is not overstepped. Although the ban, when restricted to 5 or 20 bulk messages was on its own proportionate to the perceived harm to public order caused by the speech attempted to be curbed, the arbitrariness of implementation, between pre-paid and post-paid customers, as well as the technical issues that were faced, all lead to issues of implementation which violate the equality and non-arbitrariness requirement that all actions which affect the freedom of speech should meet.

By failing to provide us with a reasoned order which justified the Government’s actions and by failing to oversee the implementation of the order strictly, as should be done when there is a restriction of fundamental rights, there is a violation of our fundamental rights of both equality before the law, and of the freedom of speech and expression, through the effect of arbitrary laws.

Free(zing) Speech in a Crisis: The Virtues of a Considered and Constitutional Response

Last month, news of rumours of persecution of Indian citizens of Northeastern descent began to be widely reported. By the 21^st of August, it appeared that authorities had authorized internet service providers to block a vast number of websites online for “inflammatory content”. Authorities said that the website blocks were intended to prevent further communal unrest and incitement to violence after clashes had broken out in Assam amongst Muslim settlers and indigenous Bodos. With the publication of a consolidated (but not comprehensive) leaked list of the blocked websites, which revealed that four orders blocking atleast 310 items had been passed, however, it has become clear that the blocking was widespread, careless, and sometimes unnecessary or even counter-productive. Coupled with the disabling of a number of Twitter accounts, including some parodying the Prime Minister, and curbs on SMS services, the blocking has become the subject of popular condemnation across media.

[See here, here, here, here and here for a fairly representative sample of the news and opinion surrounding the blocks.]

Legality and Legitimacy of the Blocks

Legal Basis for the Blocks

Generally speaking, any censorship will have to amount to a reasonable restriction on the right to freedom of speech and expression under Article 19 of the Constitution. More specifically, however, the Information Technology (Procedure and Safeguards for Blocking of Access to Information by Public) Rules, 2009 empower the Government to block access to content online. It appears that this instance of blocking was an exercise of the emergency power under Rule 8 of the blocking authority under those rules. The rules themselves are framed under Section 69A of the Information Technology Act, 2000, which empowers the Central Government to direct any government agency or intermediary to block access to content, where that blocking is “necessary or expedient” on Article 19 (2) grounds.

[Section 69A was introduced by the 2008 amendment to the IT Act, which, along with the rules, is available here.]

Scope of the ‘Public Order’ Entry in Article 19 (2)

After the First Amendment was enacted in response to the Supreme Court’s decisions in Romesh Thapar v. State of Madras and Brij Bhushan v. State of Delhi(see here for an interesting aside on the First Amendment), restrictions “in the interests of . . . public order” are constitutionally permissible. The Supreme Court has defined the term, early on, to be “synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State” (Superintendent v. Ram Manohar Lohiya). It also held that the use of the phrase “in the interests of” rather than “for the maintenance of” rendered the exception very wide in amplitude (Ramji Lal Modi v. State of U.P.).

Assuming that the IT Act provisions and Rules are lawful (and I am not entirely sure that they are, as we will show in future posts), it appears that the blocking is prima facie constitutional, for being implemented under a valid 19 (2) ground.

While the substance of the restriction is always a concern, it’s possible to argue that formal considerations of procedure in implementation are often even more important to accord rights-infringing state action legal and moral legitimacy. And that is where the URL blocks fail.

How Lawful Censorship Should Occur

Given that the public order ground does apply to this instance of blocking, the next line of the inquiry into constitutionality will be whether the test of reasonableness is satisfied. Our Supreme Court held as early as in 1950 in Chintaman Rao v. State of Madhya Pradesh that it will be the state’s burden to show that a prima facie abridgement of an Article 19 right is constitutionally permissible under the relevant restrictions clause. In other words, the presumption will be in favour of the lawfulness of speech, until it is directly rebutted by the state.

The constitutionality of the restriction consists, in the main, of its ability to satisfy the test of ‘reasonableness’ of the restriction. Simply, it must balance social control by the state with citizens’ fundamental rights. Although there are no absolute standards against which a restriction will be tested, there are several broad guidelines. First, reasonableness refers to substantive as well as procedural elements of the restriction (Dr. N.B. Khare v. State of Delhi). Second, factors such as the manner of authorization of the restriction, the duration and extent of the restriction, the prevalent circumstances, the urgency of the evil intended to be remedied, and whether the Government action was adequately communicated to rights holders will all be relevant (State of Madras v. V.G. Row). Further, Chintaman Rao held that the term ‘reasonable’ implied “intelligent care and deliberation” as opposed to unfair, arbitrary or excessive action. Similarly, vagueness of a restriction can be grounds for defeating it (K.A. Abbas v. Union of India). Consequently, the third requirement is that reasonable restrictions must necessarily be Article 14 compliant, while the fourth is that of specificity and proportionality.

Whether the Blocking is Defensible

There’s no debate as to the legitimacy of blocking on public order grounds. In addition, content that would have been blocked by a targeted order would also render its authors vulnerable under criminal law, under sections 153A, 295A and 505 of the Indian Penal Code, 1860.

Even assuming that the relevant provisions under the IT Act and Rules are themselves constitutional, the implementation of the blocks involved a host of procedural improprieties. Broadly, the lack of transparency is a significant concern. Section 69A itself provides that reasons be given where the relevant authority blocks in exercise of its provisions. The lack of specific notice (of the blocking, with reasons) to the actual authors of the offending content, and of a right to reply is especially problematic. Given that the measure was ostensibly an emergency response, that notice and opportunity for a hearing should at least be accorded ex post. Instead, Rule 16 of the IT Rules for blocking makes the actions taken under these rules strictly confidential. With bodies ranging from the Ministry of Home Affairs and the Ministry for Communications and IT to intelligence agencies such as the Intelligence Bureau, the National Technical Research Organisation and CERT-IN all being involved in the process to degrees and in capacities that are not clear, there is real a lack of accountability and of a right to remedies in the process.

While the proportionality standard under the Article 19 (2) does not go so far as to allow only minimum impairment of free speech (as do the Articles 19 of the ICCPR and UDHR, to which we are party), it is fair to argue that legitimate and morally defensible censorship should attempt to satisfy this standard. It is painfully evident that even the lower of the two standards, that of proportionality simpliciter, is unsatisfied by the orders here: the blocks cover content far in excess of content inciting violence or hatred, as a look at the list of content blocked shows. Also, the orders themselves do not appear to specify the duration for which the blocking will extend, leaving open the theoretical possibility of an indefinite blocking of access.

Preventing Unintended Consequences

The Streisand Effect, a term which describes the physics of communications online is very à propos here: the authorities’ attempts at suppressing the rumours by blocking access to them significantly accelerated the spread of the news about their existence. The danger with adopting a purely reactionary response is that suppressing information may be an ultimately counter-productive exercise, even if the action taken is targeted and specific. What is necessary is that the State take public notice of the bad information and rebut it with the facts, and no attempt at that was made here.

There’s also the obvious (and ironic) consequence of the government shooting itself in the foot by making channels of communication inaccessible to the public. A prominent journalist tweeted that officials were telling him they were unable to provide information because the SMS ban had paralysed their ability to communicate as well.

Finally, the exercise of a little care and of due process could have avoided what was possibly the most counterproductive action: blogs and websites countering the rumours were also listed and blocked. Even if the authorities had erroneously done this, the provision of simple rights, to specific notice and hearing, would have made the difference.

Giving Social Media Its Due

Parallels between the Government’s belief in the internet-fuelled unrest in India and the British state’s view of the power of social networks after the London riots in 2011 are compelling, notwithstanding that despite the initial rancour from their Parliament and press, cooler heads prevailed and no social media blocking ensued in the aftermath of the riots. It is important to note that subsequent studies, such as this one, show that the social media itself was not the evil, the riots were caused by already deeply-rooted underlying social and economic problems. Also, it’s been shown that the unequivocal vilification of social media as a means of promoting violence and illegal activity is unfair: social media may have allowed for information to be exchanged quickly during the riots, but it also mobilized the clean-up.

There are many other instances in which the internet has served as a powerful tool by which panic and alarm in sensitive situations can be mitigated, and good information disseminated. In Japan, during the earthquake and tsunami, Twitter and Facebook played a crucial role in disseminating information. Participatory media such as Global Voices have helped citizens to communicate and report their stories during crises, where they are not otherwise heard.

So, targeting internet content alone will not be a sufficient solution to the recent exodus of Indian citizens from the South back to the North East. Equally, it would be productive to realize that the underlying problem needs to be addressed socially and politically. Blocking is reactionary and transient, and does nothing to address the discomfort of some communities Indian citizens in their own country.

In all fairness, it is not as if the need for specificity in blocking is one that escapes our Government. In July 2006, when ISPs over-censored in response to a DoT direction to block specific content, they were asked to immediately restore access to the content and to show cause. At one stage in this instance of blocking, the Home Ministry issued a press release stating categorically that “[t]here is no censorship at all”, even as it said that any action taken was specifically targeted against offending content. Interestingly enough, the Department of Electronics and Information Technology (or ‘DeitY’, an unfortunate acronym, given the circumstances) of the Ministry of Communications and IT announced Guidelines for use of Social Media by Government Agencies around the same time as the Ministry undertook the indiscriminate blocking.

It is clear that the authorities appreciate that censorship in a liberal democracy is problematic and is presumptively illegitimate, given its emphasis on the preservation of civil and political liberties. It is also clear that the basic principles of targeted and proactive responses to crises, citizen involvement in social media and natural justice are concerns that our Government theoretically recognizes. It is time we saw them implemented.