Recently, the government issued an order blocking the airing of the BBC documentary titled, ‘India: The Modi Question.’ The government invoked its emergency powers under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (‘IT Rules’) to direct YouTube and Twitter to block URLs that enabled access to the documentary. The government in its order cited the impact of the documentary to “undermine the sovereignty and integrity of India” as the ground for banning the documentary. While the validity of the order is currently under challenge in the Supreme Court, the authors are writing this paper in anticipation of the judgement and suggest how the Court should decide the matter at hand. We argue that the government order is plagued with illegality for violating the provisions of the Information Technology Act, 2000 (‘IT Act’) and the rules thereunder. The order does away with the safeguards relied upon by the landmark judgement in Shreya Singhal v Union of India while upholding the constitutionality of Section 69A. We shall also conceptualise and situate the recent happenings into the larger paradigm of executive aggrandizement and the constant abuse of emergency powers by the government.
The Emergency Powers
The power to block access to content is derivable from Section 69A of the IT Act. Under Section 69A(2) of this Act, the government framed the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘Blocking Rules’). These Rules are still in operation after the enactment of the IT Rules which have certain provisions that are pari materia to the Blocking Rules. Rule 9 of the Blocking Rules and Rule 16 of the IT Rules allow the Secretary, Ministry of Information and Broadcasting, to direct the intermediaries to block content when ‘necessary’ without providing an opportunity of hearing to the other party.
This is not the first time that these emergency powers have been invoked. There have been at least seven more previous instances since 2021. This indicates that these supposed “emergency powers” have been occasionally used to stifle free speech in India. The use of these powers is a cause for concern as it denies the intermediary or the originator of the content a right to hearing before the concerned authority. Apart from the use of emergency powers to block content, the government also frequently uses its ordinary powers under the Blocking Rules and the IT Rules to restrict access to information to the public.
The Illegality of the Order
The most striking feature of the order banning the BBC documentary is the lack of such an order. The public was intimated of the ban through a tweet by Kanchan Gupta, Senior Adviser, Ministry of Information and Broadcasting. This is expressly against the requirement of “recording reasons in writing” under Rule 16(2) of the IT Rules. This indicates that the order is in violation of the IT Rules and hence is illegal. It is also highly dubious whether the correct procedure for banning the documentary under Rule 16(3) was followed.
This also goes against the rationale for upholding the validity of Section 69A and the Blocking Rules by the Court in Shreya Singhal. The Court emphasised the presence of adequate safeguards in S.69A and the Blocking Rules. These include a written order with reasons, the existence of a review committee, and providing an opportunity to be heard. All these three safeguards are absent in the current government order.
First, as mentioned earlier, there is no written order banning the BBC documentary. This use of secret orders is only the latest in a long line of secret orders passed by the government to block content. The government cites the confidentiality clause under Rule 16 of the Blocking Rules to deny access to any information to the public regarding these orders. Gautam Bhatia has argued that the Court in Shreya Singhal has struck down the confidentiality rule by necessary implication from the judgment. This is further strengthened by the dictum of the Court in Anuradha Bhasin v Union of India which requires that government-imposed restrictions should be available to the public. Second, the review committee has been virtually non-existent in its role. There is no public record of the review committee meetings. A recent RTI request indicates that the review committee has not revoked even a single blocking order since the enactment of the Blocking Rules in 2009. This indicates the ‘systemic breakdown’ of an essential safeguard present in the Blocking Rules and the IT Rules.
Third, Rule 16 of the IT Rules and its equivalent under the Blocking Rules expressly remove the requirement to provide an opportunity of hearing the other party. However, if one reads the Shreya Singhal judgment in its entirety, the Court stressed on the importance of pre-decisional hearing provided under the Blocking Rules while upholding their constitutionality. Even though the Court does not go into the emergency powers specifically, it is possible to argue that the Court has read in the requirement to provide a hearing to the other party before passing the final order (not the interim order) under Rule 9(4) of the Blocking Rules. This is especially important as providing a fair hearing is one of the fundamental principles of natural justice. This requirement was also not fulfilled in the present case.
This indicates that the government order banning the BBC documentary was illegal for violating the provisions of the IT Act, the rules thereunder and the judicial pronouncements on the same.
Conclusion and the Way Forward
This paper has established the illegality of the order blocking access to the BBC documentary. It has also highlighted the constant abuse of emergency powers by the government in contravention of the established law. The Court while deciding the validity of the BBC ban order has the opportunity to issue clarifications and guidelines on the use of such power. The Court can clarify whether the judgment in Shreya Singhal read in the requirement of a fair hearing when exercising the emergency powers. The Court can also elucidate whether Rule 16 of the Blocking Rules has been struck down in Shreya Singhal, as has been argued by Gautam Bhatia. These clarifications would go a long way in removing the cloak of secrecy in passing these orders and ensuring transparency. It would also help in curbing the unbridled emergency powers of the executive by following the principles of natural justice.
The Court should also issue guidelines for ensuring the proper constitution of the review committee and that the committee meets as per its required mandate. It could also urge the government to ensure that members of the opposition and various experts are part of the review committee to check the exercise of blocking powers by the government. This is especially important in the current context of executive aggrandizement where greater powers have been assumed by the executive to encroach upon the rights of the public.
If the government continues to exercise its power in an undemocratic and arbitrary way, it may cast aspersions on the constitutionality of the emergency powers under the IT Rules and the Blocking Rules for violating the IT Act and restricting the freedom of speech and expression under Article19(1)(a) of the Constitution.