The blocking of ‘The Kashmir Walla’ underscores India’s draconian censorship of the internet

Since August 20, the website and Facebook and Twitter accounts of independent news organisation The Kashmir Walla have been blocked on the orders of the Central government.

Since the government did not issue any notice or serve orders to The Kashmir Walla, the organisation found out only upon contacting its online server provider that the blocking had been ordered by the Union Ministry of Electronics and Information Technology under the Information Technology Act, 2000.

Legal provisions specify the procedure the government must follow to block online content, which includes notifying the owner of the account or content. But a Karnataka High Court order in June has nullified some of these safeguards, bolstering the government’s powers to censor online content.

The Digital Personal Data Protection Bill, 2023, which has been passed by Parliament and received presidential assent on August 11, further empowers the government to censor the news on nebulous grounds. Together, they have troubling implications for press freedom and free speech online in an environment of increased hostility against dissenting and critical opinions.

Provisions to block online content

Section 69A of the Information Technology Act empowers the Centre to order the blocking of any online content. Such an order can only be made on the grounds of the interest of India’s sovereignty and integrity, national security, defence, international relations, public order, or for preventing the incitement to commit a crime related to these grounds.

These broadly correlate with the grounds to restrict the freedom of speech and expression in Article 19(2) of the Constitution.

The procedure to implement such a blocking order is prescribed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

As per these rules, anyone can file a complaint with a Central or state government department regarding the blocking of any online content. The department, if satisfied by the merits of the complaint based on Section 69A, will forward the complaint to an officer designated as such by the Centre.

The complaint is examined by a committee chaired by the designated officer, and comprises bureaucrats from the Union ministries of law and justice, home affairs, information and broadcasting, and the Indian Computer Emergency Response Team.

As part of this examination, the committee is required to notify the “person or intermediary [hosting] the information” and whoever has been notified, must appear before the committee to respond to the complaint.

The committee, after making its decision, sends a written recommendation to the Department of Information and Technology under the information technology ministry. If a recommendation to block is approved by the department, the designated officer directs the relevant state agency or online intermediary – such as the online server or web host – to block the content.

However, in cases of an emergency “for which no delay is acceptable” and it is “necessary or expedient and justifiable to block” some online content, the designated officer may straight away recommend to the Department of Information and Technology to block such content. If the department agrees with the recommendation, it will make an interim order to the online intermediary to block the content. There is no further clarification in the Information and Technology rules as to what would entail an emergency situation.

To issue an interim blocking order, it is not necessary for the online intermediary or the owner of the content/website to be notified or heard.

However, as per the Information and Technology Rules, within 48 hours of this interim order, the complaint examination committee assesses the order. The online intermediary against which the blocking order was passed is notified and heard by the committee as well.

Based on its examination, the committee makes a final order on the blocking of the content – either confirming or revoking it – which is then forwarded to the Department of Information and Technology. On the basis of the recommendation, the department then continues to block the content, or unblocks it.

Since there is no appellate or review provision under the rules, the only way to challenge a blocking order will be before a High Court under Article 226 of the Constitution. Article 226 lays out the writ jurisdiction of High Courts.

Supreme Court upheld Section 69A and 2008 Rules in 2015

In 2015, the Supreme Court had delivered its verdict on challenges to provisions of the Information Technology Act. It had upheld Section 69A and the 2009 Rules on the basis that they provided specific safeguards on the exercise of the blocking power.

However, it had reiterated three conditions for the exercise of the power under Section 69A:

1. Content must only be blocked when the Centre is satisfied that it is necessary to do so,
2. This necessity must be assessed on the basis of Article 19(2) of the Constitution, which provides the grounds for restricting the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a), and
3. Blocking orders must lay out the reasons for doing so in writing so that they can be scrutinised by a High Court if the orders are challenged.

HC expands censorship powers

In June, the Karnataka High Court ruled on a petition by social media company Twitter challenging the Union government’s orders to the company to block certain tweets and accounts on its platform – now known as “X”. Twitter had contended that these blocking orders did not comply with the grounds laid out in Section 69A.

Dismissing the petition, the High Court had held that the government had the power to issue blocking orders not only for certain tweets, but for entire accounts on the platform. It also affirmed that the government could extend such blocking orders indefinitely.

Further, it ruled that the Centre was not legally required to notify the user or owner of the content about the blocking order and that it was sufficient to notify the online intermediary (which is the online platform or website host) of the blocking order.

Without such a notification, it is impossible for the owner of a blocked website or social media account to know why they have been blocked and challenge such orders before a High Court.

Lawyers and digital rights activists had told Scroll that the judgement had bolstered the government’s powers to block critical content on social media without any checks.

New law, no relief

These powers have been expanded further in the Digital Personal Data Protection Bill, 2023.

If a journalist or news organisation has been penalised monetarily for violating any provisions of the Bill as a data fiduciary (which is any entity that has access to someone else’s data) on at least two previous occasions, the government has the power to block public access to the content of the journalist or the news organisation “in the interests of the general public”.

“The language of the clause is ambiguous and could be used fluidly to ensure compliance, including by media organisations,” Namrata Maheshwari, Asia Pacific Policy Counsel at digital rights nonprofit Access Now, had told Scroll earlier.

A government board, comprising only members appointed by the Centre, has the power to exercise this provision.

With the government having armed itself with wide censorship powers, news media organisations are likely to face increased scrutiny or be subject to arbitrary takedown orders on any critical or dissenting content they publish online.