This Article is written by Nashita Nazneen. A student of B. S. Abdur Rahman Crescent Institute of Science and Technology Crescent School of Law.
The recent ban of Chinese apps by the Government of India on the grounds of prejudicial to the sovereignty and integrity of India, security and defense of India and public order conjuring its capacity under Section 69A of the Information Technology Act, 2000 hereinafter referred to as “Act” and Information Technology (Procedure and safeguards for blocking for Access of Information by Public) Rules, 2009 hereinafter referred to as “Rules”; has taken a drive back to the time when Section 69A of the Act and Rules was challenged based on its constitutionality.
In the year 2015, the Hon’ble Supreme Court of India delivered an infamous judgment in Shreya Singhal vs. Union of India. The issue of the constitutionality of Section 66A, 69A, and 79 and Rules under Section 69A and 79 of the Act were addressed by the Apex Court, taking into cognizance of all other petitions dealing with this issue. This landmark judgment upheld that the freedom of speech and expression on online platforms as a Fundamental Right guaranteed under the Indian Constitution. This has laid down new principles to expand the scope of cyber jurisprudence.
SECTION 69A – INFORMATION TECHNOLOGY ACT, 2000
Section 69A of the Act deals with the power of the Government to issue blocking directions for public access of any information through any computer resource. It empowers the Central Government or intermediary, to block the transmission of information that is generated, transmitted, received, stored, hosted in any computer resource, including the blocking of websites, when satisfied by the Central Government or any officer for that purpose thinks it is necessary or expedient to do so, for among other reasons, recorded in writing, such as the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense.
There are several safeguards in this provision which makes it unable for the Government to abuse, are as follows;
- Blocking can only be a resort where the Central Government or any officer for that purpose is satisfied, and
- It is subject to limitations under Article 19(1) of the Indian Constitution.
Reasons to block access to public/limitation of Article 19(1):
- Interest of sovereignty,
- Integrity of India,
- Defence of India,
- Security of State,
- Friendly relations with foreign State,
- Public order and
- Preventing incitement to commit any cognizable offense.
INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARDS FOR BLOCKING FOR ACCESS OF INFORMATION BY PUBLIC) RULES, 2009
Section 69A is to be perused with the Information Technology (Procedure and safeguards for blocking for Access of Information by Public) Rules, 2009. Section 69A clause (2) states that procedure and safeguards subject to blocking may be carried as per prescribed rules.
Under Notification in the Official Gazette of India on 27th October 2009 was formed to exercise the powers conferred under Section 69A of the Act. The procedure for blocking is as follows;
- Central Government shall designate via Notification in Official Gazette of India, a Designated Officer to issue direction for blocking for access by the public, any information generated, transmitted, received, stored or hosted in any computer resource.
- Every organization shall appoint a Nodal Officer which is to be intimated to the Central Government.
- Nodal Officer may receive complaints from any person. Designated Officer shall not receive any complaints from any person.
- The request must be in writing under the letterhead of the respective organization through e-mail or fax.
- The Designated Officer on request of Nodal Officer or competent Court will order the Government agency or intermediary to block for information access by the public.
- A committee will examine the request along with a sample of alleged inappropriate information.
- Designated Officer shall make all reasonable efforts to identify the originator or intermediary who hosted that information as well as a computer resource.
- Notice shall be issued to the same for appearance and to submit their reply/ clarifications.
- Committee will examine all the documents submitted so far and consider whether the request is covered within the scope of Section 69A of the Act and is it justifiable to block.
- Committee recommendations along with request shall be sent to the Secretary of the Department of Information Technology.
- After the approval is received, the Designated Officer will order the Government agency or intermediary to block for information access by the public.
- In case of emergency, the above-mentioned procedure of seeking clarifications and giving them an opportunity of hearing is not necessary.
- Provided, that after a while, if the content is found in accordance with Section 69A of the Act, the review committee may set aside directions and order for unblocking.
This process is disposed of at the earliest within 7 working days.
The law regarding content-Blocking Procedure has been declared effective on the belief and presumption that the Rules give a reasonable chance and opportunity to be heard and to challenge an unconstitutional Blocking Order. Nevertheless, there are certain assumptions; firstly, it presumes that the originator of content will be informed about the blocking of their content and a reasonable opportunity will be given to challenge the same. Secondly, that the intermediary will give a reason and defend the content before the concerned Government body. Both assumptions are practically impossible. The very technical nature of the internet, with its geographic spread and anonymity, makes it unlikely that the originator of the content may be contacted; sometimes the originator may be in a foreign country or can lack the resources to pursue and argue their case.
Due process requires a policy administering blocking of online content, which includes successful meeting/cooperation measure with partners and specialists in issues of innovation, economy, and consumer rights. A just and fair procedure with a full opportunity to an affected person of being heard/represented must be provided before an Order is passed, followed by an independent review and appeal mechanism. This will address the circumstance of setting off extraordinary estimates like blocking the web (network, correspondence and data) has its remarkable fundamental structure, which must be kept unblemished as a vital piece of internet governance.
Intermediaries will not reasonably defend the content since they prefer to avoid spending resources on protecting third-party content and punishment to an intermediary who fails to comply with the direction, is imprisonment extending to seven years and shall also liable to fine. The information available to access will continue to be affected by unreasonable government Blocking Orders. The Blocking Procedure/Order will be covered in secrecy by the application of Rule 16 of the Rules, which demands that confidentiality must be maintained in case of any Blocking Orders which makes it a roadblock for the public to access the Order if in case they are willing to challenge. The exact reasons spelt out in the Order will be unknown except for what is said in the government statements. This Rule was contested in the Shreya Singhal case but the Apex Court left it untouched.
- There was no guarantee of hearingto the originator of the information.
- Safeguards built into Section 95 and 96 of the Code of Criminal Procedure, 1973 which allow State Governments to ban publications and persons to initiate legal challenges to those actions respectively, were absent from the Blocking Procedures in the Rules.
- Rule 16 of the Blocking Procedure, which mandated confidentiality, was challenged on the grounds that it was affecting their Fundamental Rights under Part III of the Constitution of India.
While upholding the constitutionality of the procedure under Section 69A of the Act, the Apex Court stated that, “merely because additional safeguards in Section 95 and 96 of Cr.P.C are not available, it does not make the rules constitutionally infirm”. Further, the Court also stated that the provision of setting up of a review committee saved the Law from constitutional infirmity. Likewise the reasons must be recorded in writing in such Blocking Order so they might be pounced upon in a Writ Appeal under Article 226 of the Constitution of India. Right to challenge an Order is vested to both the originator or the concerned intermediary and the general public. Under the Doctrine of Implication, the Blocking Order can be made public.
However, the Confidentiality Clause to the Internet Service Providers hereinafter referred to as “ISP” is preventing legal challenges to content blocking in totality; non-accessibility of Orders makes it difficult to understand the Governments reasoning. This fails to come under the purview of Right to Information (RTI). A study conducted by the Centre for Internet and Society (CIS) in 2017, found that five surveyed ISPs refused to share information about website blocking requests. In July 2018, the Bharat Sanchar Nagam Limited (BSNL) rejected the RTI request by CIS which asked for the list of blocked websites.
The lack of transparency, clear guidelines and a monitoring mechanism means that there are various forms of arbitrary behaviour by ISPs such as;
- Difficult to ascertain whether a website block was ordered by the Central Government due to the Confidentiality Clause.
- There is no technical method for the ISPs to follow the block in the Rules.
- Geographic spread of the regions and their telecom circles coming under the same ISP.
- No mechanism to make sure that the ISPs have unblocked the websites.
Associations like the Internet Freedom Foundation have likewise been calling attention to how, if ISPs block sites in a non-transparent way, it comprises infringement of the Net Neutrality Rules that ISPs are bound to since July 2018.
Citizen Lab, an interdisciplinary lab situated in the University of Toronto, alongside the Canadian Broadcasting Corporation (CBC) and The Indian Express, researched this part of Section 69A and found that in between August 2017-2018, the classification of impeded sites included worldwide associations and NGOs. The Ministry of Electronics and Information Technology, nonetheless, denied obstructing these sites. Without public declarations, it is hard to distinguish who requested a site to be obstructed, when and on what grounds.
Given the current situations, the latest Governmental Interim Order that bans 59 Chinese apps has been issued under the Emergency Clause. Brijesh Singh, Inspector General of Police, Maharashtra, referred to the potential security issues related to such applications, “During hostilities and conflict between China and other countries, data from these apps will put the Chinese regime to great geopolitical advantage. It can have a real-time picture of various strategic and tactical initiatives undertaken by the other country for its defense and combat preparedness. Apart from the data gathered in due course of business, deliberate vulnerabilities left in the software and hardware of ubiquitous cheap Chinese smart-phones can lead to severe compromise of individuals as well as organizational information. Ill-protected and insecure coding of Chinese operating systems and apps can also allow for further targeted attacks by providing an initial foothold into the victims’ devices. A rapid and thorough assessment of Chinese apps from the point of view of national security as well as individual privacy is the urgent need of the hour”.
This verdict was immensely important in spacing the Internet Laws. It has added more clarity to the jurisprudence of free speech in India which may guide legislative drafting and judicial decisions in the future. Apart from the Fundamental Rights concept, it also spaced the cyber jurisprudence. Even though the originator’s hearing opportunity is bare minimum, on the brighter side this will ensure that the originators will keep in mind the Act and Rules before proceeding with any content/information. Strict Cyber Laws will impact on the Fundamental Rights unless they are administered and implemented properly.
“At the end of the day, the goals are simple: safety and security.”- Jodi Rell
- AayushSoni and AditiChaturvedi, Can Chinese apps appeal India’s ban? Section 69A of IT Act has the answer; July 6, 2020
- DeepaKharb, Cyber Law, Vol. LI; ANNUAL SURVEY OF INDIAN LAWS
- Gurshabad Grover, To preserve freedoms online, amend the IT Act; April 16, 2020 https://www.hindustantimes.com/analysis/to-preserve-freedoms-online-amend-the-it-act/story-aC0jXUId4gpydJyuoBcJdI.html
- OwaisFarooqui and AftabAlam, Shreya Singhal V. Union of India: Case Analysis, Volume 1; Issue 1; November 2015; Page No. 54-58 International Journal of Law ISSN: 2455-2194
- Murali Krishnan, Centre used IT Act powers to block apps; July 01, 2020 https://www.hindustantimes.com/
- Shreya Singhal vs. Union of India [AIR 2015 SC 1523]
- TorshaSakar and Gurshabad Grover, Content takedown and users rights; February 12, 2020