Context:

• The Ministry of Information and Broadcasting (MIB) recently issued orders to Twitter and YouTube to block access to the BBC documentary, India: The Modi Question, within India.
• These orders were made using emergency powers granted under the Information Technology (IT) Rules 2021 and Section 69A (empowers the government to restrict access to any content in the interest of sovereignty and integrity of the country) of the IT Act 2000.
• There are concerns regarding natural justice, and how the IT Rules are always being revised.

What are the Emergency Provisions?

• Under the IT Rules 2021, the MIB has powers to issue content takedown notices to social media intermediaries like YouTube, Twitter and Facebook in emergency situations for which no delay is acceptable.
• These emergency notices can be issued if the MIB believes that the content can impact the sovereignty, integrity, defence or security of India, friendly relations with foreign states or public order, or to prevent incitement to any cognisable offence.
• Although the IT Rules 2021 outline user recourse options, these are only applicable to “actions” taken by social media companies.
• For instance, if a platform has on its own taken down some content, the user can approach the grievance officer of the platform to raise a dispute, which they are to redress within 15 days.
• However, if a platform has taken down content on the basis of the emergency provisions in the Rules, the legislation does not offer any direct recourse.
• The only option users have in this case is to approach courts. However, by their very nature, the blocking orders are confidential, which means that users do not know the provisions under which their content was flagged.

Frequent Use of Emergency Provisions by the Government:

• The term “emergency” is not legislatively defined, and its application has been challenged in courts earlier.
• For example, the Bombay HC (in 2021) suspended rules that establish a code of ethics for online news platforms and a three-tier grievance redress mechanism headed by the central government.
  • The court said “it is healthy to invite criticism of all those who are in public service for the nation to have structured growth.”
• The Madras HC held that Article 19(1)(a) of the Constitution may be infringed if the Section 69A is coercively applied.
• Despite these rulings, an increased use of emergency powers have been witnessed. For instance, the BBC documentary has been described by public authorities as “propaganda” reflecting “a colonial mindset”.

How the Government Ensured Frequent Use of Censorship Provisions?

• The IT Rules first notified in 2011 by the Ministry of Electronics and IT (MeitY) have undergone a radical change.
• This can be attributed to a centralisation of executive power and the rapid changes in the subject matter for regulation.
• In 2021, the rules were amended drastically to increase government control over online platforms and news publishers.
• Other changes included the creation of grievance officers for social media companies and traceability requirements to increase censorship and break privacy-protecting technologies such as encryption.
• It also required news publishers to follow a vague moral code of self-censorship.
• In 2022, rather than addressing such constitutional concerns, another set of amendments created a government censorship body sitting in appeal of the content moderated by social media companies.
• This year started with more proposed changes. For example, MeitY wanted to create a self-regulatory system for online gaming and gambling companies, which is illegal on several grounds, including federalism, given that legislation on it is a State subject.
• Another draft gave the Press Information Bureau a general mandate to fact-check and take down any online content without defining the term “fake”.

How the Government’s Recent Decision Violates Natural Justice Principle?

• Natural justice is a fundamental principle in public law, which simply means to make a sensible and reasonable decision-making procedure on a particular issue.
• For example, a decision which affects fundamental rights such as the freedom of speech violates the principle of natural justice.
• The Supreme Court of India is of the view that the right to receive and impart information is implicit in free speech.
• Therefore, any restriction must issue a show cause notice, provide the opportunity of defence and record reasons in an order that is made publicly.
• Providing reasons allows for the author/ publisher/ the recipient of the information, to seek judicial remedies and act as a check for constitutionally permitted censorship.
• In the above case, none of the procedures of natural justice were followed. Also, such practice is contrary to the directions of the SC in the Shreya Singhal vs Union of India case.
  • In the case, it was upheld that blocking orders issued under Section 69A must include a written record of the reasons so that the blocking order can be challenged in a writ petition.
  • However, the blocking orders in the above case are communicated directly to service providers and tagged as "secret" or "confidential," making it difficult for the authors to defend. 

Conclusion:

• Fundamental rights are violated by giving the appearance of a process that permits extensive censorship powers.
• Hence, there is the need to prioritise free speech and expression in a digital and democratic India.