About a month after the Supreme Court’s judgment on the constitutionality of Section 66A of the Information Technology (I.T.) Act generated much enthusiasm among free speech activists, some disturbing details have emerged about the lack of transparency in the blocking of a large number of websites by the government. This has significant implications for democratising information on the Internet and for the manner in which the government exercises control over the right of the people to receive information. On March 24, the Supreme Court ruled that Section 66A of the I.T. Act, 2000, which had been used by governments to curb dissent on the Internet, infringed on the fundamental right to freedom of speech and expression and did not come under the ambit of the reasonable restrictions covered in Article 19(2) of the Constitution. Revelations made recently in response to a set of questions raised in the Rajya Sabha point to a continuing trend of opacity in the process of blocking of websites by the government. While the Shreya Singhal vs Union of India judgment of the Supreme Court has been hailed as a major triumph for the cause of free speech, the government continues to use other tools, such as non-transparent blocking of content on the Internet, which raises serious questions of accountability in the realm of Internet governance.
Blocking of URLs On April 24, Congress Member of Parliament Avinash Pande raised a number of questions in the Rajya Sabha about the blocking of uniform resource locators (URLs) and websites. He asked the Minister of Communications and Information Technology whether the government had blocked access to certain websites and URLs during the current year and last year and, if so, the specifications thereof. He also asked what the total number of blocking orders revoked by the Department of Electronics and Information Technology or any other government agency from January 2014 to date was. Further, he asked whether the government had issued any emergency blocking orders under Section 69(A) of the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009, and if so, what the total number of such emergency blocking orders since January 2014 was.
The responses to these questions have brought to the fore the extent of the problem. The Ministry of Communications and Information Technology informed the House that the government had invoked Section 69A of the I.T. Act, 2000, which empowers the government to block any information generated, received, stored or hosted in any computer resource in the interest of the 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 cognisable offence relating to the above.
These are only the broad reasons for which the blocking of content is permitted. A total of 255 URLs were blocked in 2014 under Section 69A through the committee constituted under the rules therein. No URLs have been blocked in 2015 so far. Further, a total of 2,091 URLs and 143 URLs were blocked in 2014 and 2015 respectively in order to comply with the directions of the competent courts. Also, two orders were issued to revoke 251 blocked URLs in January. The government also disclosed that a total of 216 URLs were blocked from January 2014 to date. The government stopped short of providing any detailed reasons for blocking these websites. It stated that the information hosted on these URLs were “anti-national, provocative, communal hatred, which could lead to serious law and order problem in the country”.
Earlier, in response to a Right to Information (RTI) request filed by the Software Freedom Law Centre (SFLC), a Delhi-based think tank, the Ministry of Communications and Information Technology had provided information about the number of blocking orders from 2012 until 2014. According to the Ministry’s response, a copy of which Frontline has accessed, a total of 708, 1,349 and 2,341 URLs were blocked in 2012, 2013 and 2014, respectively. The government, however, refused to provide details of the complaints received and the reasons for blocking websites, citing strict confidentiality under Rule 16 of the Information Technology (Blocking for Access of Information by Public) Rules under Section 69A of the I.T. Act, 2000.
Procedure of blocking Concerns have been raised about the lack of transparency in the procedure of blocking of URLs by the government. The government-ordered blocking process under the Blocking Rules of the I.T. Act, 2000, is shrouded in secrecy. Rule 16 requires that the blocking requests and implementation be kept confidential. Under Section 69A of the I.T. Act, when the government is of the view that it is “necessary or expedient” to block a website in the interest of the “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 cognisable offence relating to the above”, it can direct blocking access to information “generated, transmitted, received, stored, or hosted in any computer resource”.
According to the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, individuals can send their complaints to nodal officers of Ministries and Departments of the Central government in question. The nodal officer, after examining the complaint, forwards it to the designated officer. The requests received by the officer are required to be examined by a committee comprising representatives from the Ministries of Law and Justice, Home Affairs and Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-In) within seven days. The recommendations of the committee are then presented to the Secretary of the Department of Technology for approval. The process may be bypassed in case of an emergency and the designated officer can examine the request and directly approach the Secretary with his recommendations.
The rules also provide for a review committee, which is required to meet at least once in every two months to review whether the directions issued for blocking are in accordance with Section 69(A)(1).
The requests are mostly directed at telecommunication companies and Internet service providers, but they are also sent to online intermediaries, such as Google and Facebook.
Speaking to Frontline , Chinmayi Arun, research director of the Centre for Communication Governance, National Law University Delhi, said: “A serious flaw in the process of blocking of websites by the executive is that it is completely opaque. Rule 16 of the Blocking Rules under the I.T. Act says that the blocking orders have to be kept confidential, but it doesn’t specify who has to keep it confidential—this potentially endangers anyone who reveals even completely harmless details of blocking orders. This lack of transparency makes it impossible, when the government cites national security or another permissible reason for blocking content, to check if the content actually falls within the forbidden category invoked by the government.”
She added: “Now that quite a lot of blocking orders are being issued, it is important to find out the number of blocking orders and examine our review process in this context. Can the review committee consisting of very busy, senior government officers be expected to apply its mind at one sitting to so many blocking orders and to each URL blocked? However, the government has not been forthcoming in providing this number in response to our RTI queries.”
She highlighted the importance of finding out the specific nature of the content blocked: “The only way to see if the government is blocking content in a legitimate and constitutional manner is to see what specific content they are blocking and evaluate it in the light of the categories of the content that they are allowed to block. The process of blocking as of now has no third-party oversight.”
Supreme Court guidelines The Supreme Court in Shreya Singhal vs Union of India stopped short of declaring Section 69A of the I.T. Act unconstitutional. However, it made a number of important observations regarding the procedural safeguards to be followed so as to ensure that the blocking of content is not arbitrary. It observed, “First and foremost, blocking can only be resorted to where the Central government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.”
The court further interpreted the blocking rules to provide enough checks and balances against arbitrary government action. It said, “It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the ‘person’ i.e. the originator is identified, he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made. It is only an intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A.”
Chinmayi Arun elaborated on the significance of these observations: “The court has interpreted the rules to mean that the originator of the content also needs to be heard. The government now has to make reasonable efforts to contact the originator of the content.”
The SFLC observed in a statement: “There is an immediate need for the government to reconsider its stance on transparency in URL blocking. Not only does opacity make for bad governance, it also restricts the citizens’ right to receive and impart information as guaranteed under Article 19(1)(A) of the Constitution. SFLC.in has already filed an appeal regarding Department of Electronics and Information Technology (DEITY)’s refusal to part with substantial information on URL-blocking, but the need for a more comprehensive legislative change in this regard remains nevertheless.”
In fact, the People’s Union for Civil Liberties in a petition had challenged the procedure of blocking of websites in the Supreme Court as part of the public interest litigation that challenged Section 66A of the I.T. Act.
The PUCL petition argues that “the process for blocking of websites is entirely secret and ex facie fail to meet constitutional safeguards of natural justice under Articles 19 and 21. The unreasonably restrictive pr-ocedure for banning websites, in addition, does not meet the procedural natural justice standards for book banning; e-books may thus be banned easily and secretively, immune to legal challenge as compared with their paper counterparts. As such the rules concerning the blocking of websites in their present form are violative of Article 14 of the Constitution of India.”
