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 21st 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.