Speaking truth to power is precarious. Authoritarian governments do not like to be told what they are doing is wrong. They find ways to restrict speech and expression. This need not be always in the form of outright censorship. For example, in 1934, the State of Louisiana in the United States passed a legislation imposing a license tax on newspapers and magazines with a circulation of more than 20,000 copies—a move aimed at publications critical of the government. In 1956, the Indian government passed the Newspaper (Price and Page) Act, which empowered it to regulate the price and advertising space of newspapers.
Speech could also be restrained by a carefully designed regulatory mechanism imposing extraordinary burdens on the media. A principal aim of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, is precisely this. The Rules are deliberately structured to make overreaching interference and impose criminal sanctions for non-compliance. They are an extension of a culture of intolerance consisting of misuse of draconian laws such as sedition (124-A, Indian Penal Code) and introduction of harsh statutes such as the Unlawful Activities (Prevention) Amendment Act, 2019—a culture perpetuated by the Narendra Modi government.
The Rules came into force in February, superseding the Information Technology (Intermediary Guidelines) Rules, 2011. The most striking feature of the Rules is that they regulate both the digital media (including ‘publishers of news and current affairs content’) and ‘publishers of online curated content’, in addition to intermediaries. They impose a three-tier structure of regulatory mechanism through Rule 9(3) consisting of Levels I, II and III, that is, self-regulation by publishers, self-regulation by self-regulatory bodies of publishers and oversight mechanism by the Central government. Publishers are legally required to set up their own oversight mechanisms, and, at the same time, subject themselves to the government mechanism. Under the former, numerous obligations, such as appointment of grievance officers, classification of curated content, and response to every grievance within 15 days, are mandated. This framework is ostensibly onerous especially for publishers with limited financial and human resources. This is sufficient to cripple small organisations and independent journalists.
The Rules also suffer from problems of prior restraint and chilling effect—doctrines that render free speech regulations manifestly unconstitutional. For example, under clause II of the Appendix of the Rules, a publisher of an online curated content is required to consider “India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group”. This is an extra-constitutional restriction, absent in the list of reasonable restrictions provided by the Constitution. This constitutes a prior restraint on a publisher who must now subject all content to this additional test before publication. Punitive provisions under the Rules stifle creativity and expression by ‘chilling’ speech.
Further, there are aspects rendering the Rules democratically deficient. First, the Rules are introduced through delegated legislation. This basically means that the Rules did not have to have parliamentary sanction. This sidestepping has political ramifications since the Rules escape democratic accountability altogether, that is, neither the opposition nor other Members of Parliament are consulted. Two, there was no pre-legislative consultation with the stakeholders before regulations for over-the-top (OTT) platforms and digital media were notified. Pre-legislative consultation is important to keep the executive action in check, by enabling the affected persons to present their views. The Rules have negated the value of ‘unlimited discussions’ in an open democracy.
In 1984, after noting various techniques used by governments to influence or suppress the press, the Supreme Court maintained: “It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it. lt is, therefore, the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate” ( Indian Express Newspapers Pvt. Ltd. vs Union of India ).
Also read: Modi regime's agenda of repression
Both laws mentioned in the beginning were struck down by courts. The U.S. Supreme Court held the Louisiana law to be unconstitutional ( Grosjean vs American Press Co. , 1936). The Indian Supreme Court held that the newspaper regulatory law violated constitutionally guaranteed freedom of speech ( Sakal Papers vs Union of India, 1961 ). The 2021 Rules must also be done away with since they lack both legal and political sanctity.
Thulasi Raj is a lawyer at the Supreme Court of India and a Digital Rights Fellow at the Centre for Communication Governance, National Law University, Delhi.