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.