Freedom of expression is in peril in India. To be fair, the Indian Supreme Court has never been a devout protector of freedom of expression. When presented with the option, it has often leaned towards permitting limitations, so long as the restrictions are properly framed under the language of Article 19(2) of the constitution. Yet, faced with the current illiberal onslaught, there is a possibility that even the few gains that have been made in this area of the court’s jurisprudence will be lost. Situated in this context, this article discusses the recent ban issued by the Indian government on a BBC documentary on India’s prime minister, the jurisprudence of the Indian supreme court on the interception of online material, and the legal measures introduced to regulate freedom of expression on the internet.
Easy ways to censor
BBC released part one of a two-part documentary series on India’s prime minister, Narendra Modi, on 17 January 2023. The documentaries highlight events that contributed to Modi’s rise and stranglehold over power. Part I focusses on Modi’s role in the 2002 Hindu-Muslim riots in the state of Gujrat, which triggered international condemnation of Modi, the then Chief Minister of Gujrat. Part II turns its focus to Modi in power following the victory of his party, the BJP, in the 2014 general elections. It analyses the government’s majoritarian politics and its flagrant attacks on India’s Muslim minority. Though largely uncontroversial in terms of their content, the documentaries contribute to re-invigorating debate on events that are increasingly being forgotten while discussing contemporary Indian politics.
Being perturbed by their possible effects on public discourse, the Indian government responded to the documentary series by issuing an order under the Information Technology Rules, 2021 (2021 Rules) to block the circulation of the documentary on online intermediaries and social media platforms. These Rules give effect to provisions of the Information Technology Act (IT Act), which, under Section 69A, allows the federal government to block access to “any information generated, transmitted, received, stored or hosted in any computer resource”. Such blocking may be instituted in the “interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”. These reasonably broad substantive grounds for limitation are supplemented by laxed procedural rules guiding the legislation’s implementation. Key among these procedural rules is Section 16 of the 2021 Rules which allows officers authorised by the federal government to block communication on an emergency basis. The orders authorising such blocking are supposed to be scrutinised by a committee, however, till date, no such committee has been set up by the responsible ministry. As such, blocking of content, at least at present, falls under the sole prerogative of government officials, presumably acting under the direct command of the senior leadership of the party in power. Together, the broad substantive provisions and the easy-to-abuse procedural rules make it incredibly easy for the government to censor speech that it finds unpleasant.
The blocking of online content under section 69A of the IT Act was upheld by the Indian Supreme Court in a landmark judgement from 2015 – Shreya Singhal v. Union of India. The court, in this case, was called upon to scrutinize the constitutionality of Section 66A and 69A of the IT Act. The former section, which the court struck down for violating the freedom of expression clause, enabled the government, at both the state and the federal level, to punish persons for sending communications through the internet that it found grossly offensive, false, and malicious, designed to cause annoyance, etc. The court held that these grounds did not fall within the scope of the legitimate aims listed in the limitations provision to freedom of expression clause, and that section was void for vagueness and overbreadth. What marks the judgement as a landmark in India’s freedom of expression jurisprudence is that the court, through a comparative exercise, pushed the standards applicable in India closer to the “clear and present danger” standard as applied in the US. It did so by advocating for the standard, but not going as far as replacing the prevalent “bad tendency” test with it. This was made possible by the fact that the court found the “bad tendency” test as being adequate for striking down section 66A. The judgement was nevertheless seen as a breakthrough by free speech advocates since it somewhat aligned India’s jurisprudence with the more speech-protective standard applicable in the US. This progressivism however was not carried forward to the assessment of section 69A, which, as mentioned previously, empowers the government to block online content.
The petitioners while challenging 69A, had argued that the different standards applied to traditional press and online media renders Section 69A unconstitutional under the equal protection clause. Further, they argued that the due diligence responsibilities imposed on corporations amounted to an excessive burden, and that it had a chilling effect on speech. The court rejected both these claims by firstly arguing that online and traditional media are categorically different and that therefore, different standards could be applicable to both. To substantiate this claim, it argued that online platforms are unique insofar as “the internet gives an individual a platform which requires very little or no payment through which to air his views”. Secondly, the court rejected the argument regarding the excessiveness of the due diligence requirement, by arguing that such requirements are a worldwide phenomenon and that therefore, there was nothing suspect about India’s law.
In one regard, the Indian Supreme Court is absolutely right – due diligence requirements on online intermediaries are commonplace despite the strain they put on freedom of expression. The Indian law is certainly no anomaly in this regard. Therefore, analysing it provides insights into a trend fast emerging in the regulation of freedom of expression on the internet globally. To better understand the infrastructure of India’s law, it is worth analysing the remainder of the IT Act and the rules prescribed thereunder. The IT Act, when it was first established in 2000, exempted online intermediaries from liability. This changed with the introduction of the 2021 Rules. The Rules envision a combination of self-regulation and state-regulation. Since the surveillance of online content is a resource demanding enterprise, the rules abdicate the burden of regulation onto the online intermediary itself. Under the 2021 Rules, the intermediary is made responsible to assess the compliance of the content on its platform viz a plethora of laws and a code of ethics. If the intermediary fails to conduct the required due diligence, the exemption otherwise granted to online intermediaries is withdrawn, and it may be held responsible under both civil and criminal law. To supplement self-regulation, the Rules empower the government to directly block content on online intermediaries, as was the case with the BBC documentary.
From censorship to self-censorship
The emergence and acceptance of the two avenues for regulation pose a severe threat to freedom of expression on the internet. Self-regulation through the creation of grievance redressal mechanisms and the routine filtering of online content to assess compliance, pave the way for self-censorship. This is especially true in the context of a state where freedom of expression was never taken too seriously, and where it is presently under attack by the government. Following the ban of the BBC documentary, the government conducted an Income Tax raid on the BBC’s office in India, presumably to put pressure on the institution and thereby coax it to regulate its content more stringently in the future. By doing so, the government is hoping to achieve through self-regulation what it was forced to do on this occasion through direct intervention.
A case concerning the BCC documentary has since been brought to the Indian Supreme Court. The court, though it has agreed to hear the matter, has not issued interim relief for the BBC. The unwillingness to issue interim relief suggests that the court might adopt the strategy that it has become infamous for in recent years – rather than resolving matters that pose a threat to the governments political project, the court defers decision making till the time the issue at hand has become moot. It is only in other not-so-controversial cases, or in cases where rights protection favours the government, that the court shows willingness to uphold fundamental rights. Notwithstanding the politics of the judiciary, the law on free speech on the internet by itself does not inspire much confidence. If the train of thought in the 2015 judgement is to be followed, blocking of online content can take place based on standards that differ from traditional media. In the past, Indian courts have held that documentaries and films, despite being suspect because of the emotional impact they have on the audience, ought to be protected by the free speech clause so as to further social criticism and enhance democracy. While one can be hopeful that this logic would be extended to documentaries published online, if online and other material continue to be treated differently, the court, if it eventually gets about to deciding on the matter, may differentiate the present case case from past cases and not extend free speech protection to the BBC documentary.
Whatever be the court’s position and its impact on the 2021 Rules, it remains clear that the damage to freedom of expression on the internet has already been done insofar as self-censorship through self-regulation has become the flavour of the day. As such, the few gains that were made in 2015 by shifting India’s jurisprudence closer to the USA’s has been lost or, at the very least, been overshadowed.