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By Jayati Parakh
Keywords: Free speech and expression, Reasonable restrictions, Journalistic Freedom, Vagueness, Digital Personal Data Protection Act 2023
I. Free speech: A right or a weapon?
With the rank of 159 among 180 countries in the press freedom index of 2024,[1] India depicts a constantly poor performance, comparable with the absolute monarchic state of the UAE, the flawed democracy of Turkey and the authoritative regime of Russia.[2] The worsening rank of India symbolises a blow to the fundamental right to Free Speech and Expression,[3] which has been poorly strangled in the world’s largest democracy. Article 19 of the Indian Constitution, a positive right, has specific restrictions under clause 2. Nevertheless, due to the vagueness of the set grounds under the following clause, these restrictions stand vulnerable to ‘the danger of overregulation.’[4] Further, the amalgamation of this vulnerability of the restrictions, when attached to the era with nearly ‘least tolerance to the dissent,’[5] places a chilling effect on democracy, thus making Article 19 a double-edged sword.
In the contemporary era, the advent of online expression comes with a dagger of blocking orders by the Central Government under Section 69A of the Information Technology Act, 2000 and Rule 16(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. While the former provides for the blocking orders by the Central Government or its delegated authority upon finding it necessary or reasonable to do so on certain grounds provided therein. The latter provides for blocking orders under the garb of emergency. But what comes hands in gloves with both of them are a ‘cloak of secrecy’[6] and ‘sweeping executive powers even in non-emergency situations.’[7] This carte blanche of executive empowerment poses a severe threat to democracy as it concentrates the power to the Central Government, which may weaponise these powers to throttle the dissent arising in the country, which is an easy task, given the underlying grey areas within these legislations. Therefore, the following legislations allow the restrictions to surpass the fundamental right to Free Speech and Expression.
So far, with the setting of the tone for the analysis, it is evident that the Fundamental right under Article 19, which is a positive right, can be tempered with the overregulation of the legislation as encountered in the above paragraph. To further the discourse in the next segment, the following two issues will be centred as the backrest to analyse the constitutionality of Section 69A of the IT Act, 2000 and Rule 16(3) of the IT Rules, 2021, which are:
(a) Who are these gatekeepers who can operate the restrictions on online expression?
(b) On what grounds the restrictions are imposed and blocking orders are passed?
Furthermore, to understand the nuances surrounding the constitutionality of Section 69A of the IT Act, 2000 and Rule 16(3) of the IT Rules, 2021, an attempt has been made to analyse the Supreme Court’s judgement on Shreya Singhal v. Union of India,[8] which upheld the constitutionality of these legislations. In addition, an attempt has been made to analyse the Constitutionality of the recent Digital Personal Data Protection Act 2023, which the Central Government plans to put forth for public consultation.
II. The underlying grey areas: An analysis
Analogous to what Kafka said, “Before the law sits a gatekeeper,”[9] both Section 69A of the IT Act, 2000 and Rule 16(3) of the IT Rules, 2021 empower the Central Government to pass blocking orders While Section 69 of the IT Act empowers ‘the Central Government or any of its officer specially authorised’[10] to pass the blocking orders. Rule 16(3) of the IT Rules states that an ‘Authorised Officer…shall bring the request before the Committee’[11]. Where the ‘authorised officer’ is none other but an ‘officer of the Ministry’[12] itself, and ‘the committee’ before which the authorised officer brings requests for consideration and recommendation of blocking orders consists of ‘the representatives from the Ministries of the Central Government.’[13] Therefore, the gatekeeper, the Central Government, has the exclusive powers to pass the blocking orders against what it may deem unfit. This lack of independent oversight allows politics to creep in, as these powers may be manoeuvred to fulfil the purpose of the Central Government in certain situations by simply sweeping off and stifling citizens’ Fundamental right to Free Speech and Expression. Though these grounds on which the blocking orders can be passed fall in line with the reasonable restrictions under clause 2 of Article 19, the ‘vagueness’[14] that these terms carry makes them fall prey to political intentions. There have been numerous instances when terms like ‘reasonable restrictions,’ ‘public order,’ ‘sovereignty and integrity’, and ‘security of the state’ have been distorted and exploited by the Central Government, often without clearly laying the merits on which following restrictions were based.
For instance, the use of the ‘Pegasus Spyware’ by the Indian Government to target journalists captures this vulnerability, where political intentions are fulfilled over citizens’ rights.[15] Though the Central Government has maintained silence on the usage of spyware, it has kept the stance that ‘any form of surveillance by the government is done in a lawful manner.’[16] This ‘lawful manner’ is backed by the ‘sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order,’[17] which flow dubiously from the Centre’s intentions. The same can be encountered in another such incident, that is, the recent ban of the BBC Documentary by the Indian Government under the ‘cloak of nationalism.’[18] While banning it, the Government overlooked the reasonable tests that should be kept in regard to respecting fundamental rights. It disregarded the ‘necessity and proportionality tests’[19] in favour of expediency. And woefully, this arbitrary stance is further defended by the legislation laid under Rule 16(3) of the IT Rules, 2021. Furthermore, these bans not only impede the fundamental right to free speech and expression of journalists but also hamper the public’s ‘right to information,’ a constituent of Article 19.
Likewise, withholding the Twitter account of a leading magazine, ‘The Caravan’ by the Ministry of the Central Government [20], exemplifies the misuse of such powers that lie in the hands of the Centre. The journalists who reported about the death of a farmer during the prolonged farmers’ protest in January 2021 had to face the FIRs registered against them for sedition and promoting enmity.[21] Consequently, the blocking orders were passed in the name of India’s security, sovereignty, and integrity against the magazine.[22] Adding insult to the injuries, the reply by the Ministry to the subsequent request made under RTI (about the merits of blocking orders) was opaque, too. In its reply, the Ministry cited hashtags, which it claimed to be affecting the ‘public order,’ but in reality, The Caravan never posted those hashtags.[23] Therefore, this lack of transparency while passing blocking orders is the elephant in the room. As this camouflages the Centre’s arbitrary execution of powers to pass blocking orders under the guise of national security, even including the matters which it perceives as politically threatening. Further, by upholding the Constitutionality of Section 69A of the IT Act, 2000 and 16(3) of the IT Rules, 2021 in ‘Shreya Singhal v. Union of India’,[24] the Supreme Court has strengthened the already existing sweeping executive powers. While ratifying this, the Court made three observations: First, blocking can only be resorted if the Central Government finds it necessary.[25] Second, such necessity is subject to Article 19(2).[26] Third, reasons for such blocking orders have to be recorded in writing.[27] Although the Supreme Court relied on these observations, it overlooked the room for the Government to evade and exploit these regulations easily.
It is evident from the abovementioned incidents that the Central Government has passed blocking orders in the name of necessity (like national security, sovereignty and integrity, public order, etc.) but has failed to portray these necessary conditions. Likewise, the ‘vagueness’ within Article 19(2) has provided room for the ‘overregulation’ by the Central Government. Lastly, the provision that asks the Central Government to provide the reasons in writing for the blocking orders can also be eschewed effortlessly. One such example of this breach is the case of ‘X Corp. v. Union of India’[28] (the Twitter Case). The Karnataka High Court assessed Twitter’s claim that MeitY’s takedown orders disregard the Supreme Court’s directions in Shreya Singhal and that the reasons for such blocking orders weren’t provided.[29] Nevertheless, it upheld that as long as the Government exhibits processual fairness, the absence of the communication of reasons does not stand as a contention.[30] Therefore, the Court has further weakened the scope of the third direction and strengthened the Central Government’s powers to evade such directions and transparency.
III. Digital Personal Data Protection Act, 2023: A wolf in sheep’s clothing?
The final draft of the Digital Personal Data Protection Act, 2023, which got presidential assent in August 2023,[31] is soon to be put forth by the Government for public review,[32] and it may be enforced as soon as the Centre notifies.[33] It is the first law in India for data processing, introducing several amendments to both the RTI Act and the IT Act.[34] Undoubtedly, the Act concerns privacy online; it fails to balance the right to privacy with journalistic freedom. Unlike its earlier drafts of 2018 and 2019,[35][36] which lay provisions for journalistic exemption and, thus, provide a ‘balanced approach’[37] between the right to privacy and the right to free speech and expression, the legislature excludes such exemption from the final Act of 2023.[38] Now, the journalists will have to seek consent for the ‘personal data’ they decide to publish.[39] But it’s not over yet! There is yet another level to cross. If somehow a journalist manages to get the information published after due consent, the dagger still hangs, as the consent may be retracted even after the publication of such information.
Moreover, the Central Government is empowered to restrict the transfer of Personal Data.[40] Also, the Act establishes the ‘Data Protection Board,’ which is to be set by the Central Government. The issue with the body is that it doesn’t exist independently of the Central Government’s interventions. From its establishment to its composition (including the appointment of the chairperson and members, and even its employees),[41] the reins of regulation rest firmly in the hands of the Central Government. Thus, the Act not only puts a chilling effect and juggles with the transparency, but in fact, it also neglects to incorporate the suggestions of the Srikrishna Committee Report, which provides room for ‘journalistic activities’[44] and states,
A good data protection law needs to achieve a balance between competing social interests. One such conflict exists between the right to the free flow of information through freedom of speech and expression and the right to restrict such flow in the interest of privacy and safeguarding personal data handling.[45]
Therefore, harmonising the rights is the preliminary step before effectuating the Act. The journalists act as ‘proxy witnesses and information gatherers’[46] and serve the public good by fostering social accountability and sparking discussions on matters of public interest.[47] And it goes without saying that impeding media's free speech means trammelling the fourth pillar of democracy.
IV. Conclusion
As the very foundation of democracy lies at the heart and soul of free speech, which arises from deliberative and communicative rationality,[48] there is a high need to clear the blurred line of ‘restrictions’ over free speech and stop the further infantilisation of fundamental human rights. Since the undefined grounds of restrictions are vulnerable and often fall prey to political intentions, it is nothing but the failure of the Preamble of the Constitution itself. Allowing space for ‘agnostic respect’[49] for conflicting ideas and building consensus by treating dissent as adversaries rather than enemies aids in building blocks for a healthy democratic environment.[50] Undoubtedly, the striking down of Section 66A of the IT Act by the Shreya Singhal judgement paves the way for free speech;[51] Nevertheless, the abovementioned incidents display that there are miles to cover. For this to happen, the role of the judiciary comes into play, as it’s the judiciary that plays a crucial role in upholding democracy by both preserving established legal principles (status quo) and redefining the boundaries of acceptable political and social conflict (agonistic threshold).[52]
“Power is not a means; it is an end.”[53] Especially in the era of new media, where due to the ‘vagueness’[54] of the legislation, an ‘overbreadth power’[55] swings into the hands of the Government; the underlying grey spots make the laws vulnerable to be weaponised to curb any dissent arising against the Government. This can further lead to a “chilling effect”[56] by infringing the Fundamental right to Free Speech and Expression disguised glibly under the head of the ‘reasonable restrictions.’[57] In addition, there is a consequent breach of the Fundamental Rights under Articles 14 and 21 (the golden triangle effect).[58] Despite the judiciary’s efforts to provide some relief in the case of ‘Anuradha Bhasin v. Union of India,’[59] by reducing the prolonged suspension period of the internet to a temporary period, the power of the Government remains unbridled. The power to decide, ‘What period is a short period?’ still lies in the hands of the Government, which again leaves the doors open to the failure of ‘the harm test’[60] and ‘the reasonability test.’[61] To check on the misuse, the tech laws should be made definite and precise[62] rather than left open to interpretation by the Government. If not done, it will allow the doors of ambiguity to remain open. Similar to the vague usage of the word ‘goonda,’[63] as used in the Externment laws, the tech laws (including the recent DPDP Act, if enforced), due to their vagueness, are open to the vices of the Centre. Adding cherry on top, some states have already broadened the definition of goonda to encompass offences under the Information Technology Act of 2000 and the Copyright Act of 1957.[64] Supplementing the susceptible provisions of tech laws to the already ‘apprehended state of freedom of the press in the country’[65] (especially in the era of dissent and independent journalism)[66] creates a ‘totalitarian’[67] regime. Therefore, to safeguard democracy, there needs to be a clear demarcation of the institutional limits; that is, there should be an ‘independent regulatory authority.’[68] Besides, inputs from the ‘public review’[69] should be incorporated to enforce a transparent legal framework for data protection. Finally, it should be emphasized that ‘the purpose of the press is to serve people, not those in power.’[70]
References
[1] ‘World Press Freedom Index’ <https://rsf.org/en/index> accessed 28 July 2024.
[2] The Hindu Data Team, ‘India’s press freedom has rapidly declined in recent years: Data’ (The Hindu, 15 May 2024) <https://www.thehindu.com/data/india-press-freedom-has-rapidly-declined-in-recent-years-data/article68160411.ece> accessed 28 July 2024.
[3] The Constitution of India 1950, art 19, cl 2.
[4] Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (Oxford University Press 2016).
[5] Subhajit Basu and Shameek Sen, ‘Silenced voices: Unravelling India’s dissent crises through historical and contemporary analysis of free speech and suppression’ [2024] 33(1) Information & Communications Technology Law <https://doi.org/10.1080/13600834.2023.2249780> accessed 11 April 2024.
[6] Shambhavi Sinha and Nirmal Mathew, ‘Why the New IT Rules Beg Urgent Judicial Review’ (The Wire, 2 March 2021) <https://thewire.in/government/digital-platforms-intermediary-it-rules-india-freedom-of-speech-internet-control> accessed 12 April 2024.
[7] Bhatia (n 3) 100-106.
[8] Shreya Singhal v Union of India AIR 2015 SC 1523.
[9] Franz Kafka, ‘Before the Law’ (Franz Kafka online) <https://www.kafka-online.info/before-the-law.html>.
[10] The Information Technology Act 2000, s 69A.
[11] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, rule 16(3).
[12] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, rule 13(2).
[13] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, rule 14(1).
[14] Shreya Singhal (n 8).
[15] ‘India targeted high-profile journalists with Pegasus spyware: Amnesty’ (Al Jazeera, 28 December 2023) <https://www.aljazeera.com/news/2023/12/28/india-targeted-high-profile-journalists-with-pegasus-spyware-amnesty> accessed 16 April 2024.
[16] Mayank Labh, ‘Pegasus Spyware Scandal: Laws on Surveillance and Phone-Tapping’ (Live Law, 6 August 2021) <https://www.livelaw.in/know-the-law/pegaus-spyware-scandal-and-laws-on-surveillance-phone-tapping-indian-government-and-it-act-178990> accessed 16 April 2024.
[17] P. J. George, ‘The operations of the Pegasus spyware’ (The Hindu, 31 January 2021) <https://www.thehindu.com/news/national/explained-the-operations-of-the-pegasus-spyware/article38352757.ece > accessed 16 April 2024.
[18] Nissim Mannathukkaren, ‘BBC, Nationalism and a Nation in denial’ (The Wire, 10 February 2023) <https://thewire.in/media/bbc-nationalism-and-a-nation-in-denial> accessed 17 April 2024.
[19] Krishnadas Rajagopal, ‘Supreme Court will hear a plea on February 3 to restrain government from ‘censoring’ BBC documentary’ (The Hindu, 30 January 2023) https://www.thehindu.com/news/national/sc-agrees-to-hear-pil-challenging-centres-decision-to-block-bbc-documentary/article66449344.ece accessed 17 April 2024.
[20] Anando Bhakto, ‘Twitter account of The Carvan magazine withheld even as punitive action against journalists covering the farmer’s protest continues’ (Frontline Magazine, 1 February 2021) <https://frontline.thehindu.com/dispatches/twitter-account-of-the-caravan-magazine-withheld-even-as-punitive-action-against-journalists-covering-the-farmers-protest-continues/article33718727.ece> accessed 25 July 2024.
[21] Srishti Jaiswal, ‘Centre rejects RTI about blocking Carvan’s Twitter account citing national security’ (The Carvan, 7 July 2021) <https://caravanmagazine.in/media/centre-rejects-rti-about-blocking-caravan-twitter-account-citing-national-security> accessed 17 April 2024.
[22] Ibid.
[23] Ibid.
[24] Shreya Singhal (n 8).
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] X. Corp. v Union of India MANU/KA/2230/2023.
[29] Ibid.
[30] Ibid.
[31] Aiman J. Chishti, ‘President Gives Assent To Digital Personal Data Protection Act, 2023’ (Live Law, 12 August 2023) <https://www.livelaw.in/top-stories/president-gives-assent-to-data-personal-data-protection-act-235056> accessed 7 August 2024.
[32] Aashish Aryan and Surabhi Agarwal, ‘DPDP final draft to be ready for public review in two weeks’ (The Economic Times, 30 July 2024) <https://economictimes.indiatimes.com/tech/technology/dpdp-final-draft-to-be-ready-for-public-review-in-two-weeks/articleshow/112116542.cms?from=mdr> accessed 7 August 2024.
[33] Aiman J. Chishti.
[34] Anuj Nakade, ‘Digital Personal Data Protection Act Is An Outlier, Not In A Good Way’ (Live Law, 20 August 2024) <https://www.livelaw.in/interviews/digital-personal-data-protection-act-apar-gupta-interview-235652)> accessed on 7 August 2024.
[35] Personal Data Protection Bill 2018, s 47.
[36] The Data Privacy and Protection Bill 2019, s 36.
[37] Ministry of Electronics and Information Technology, Government of India, A Free and Fair Digital Economy, <https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf> accessed 3 August 2024.
[38] Digital Personal Data Protection Act 2023, s 17.
[39] Shashank Mohan, ‘New data law, a barrier to journalistic free speech’ (The Hindu, 16 April 2024) < https://www.thehindu.com/opinion/op-ed/new-data-law-a-barrier-to-journalistic-free-speech/article68068923.ece#:~:text=Typically%2C%20data%20protection%20laws%20exempt,law%20withdrew%20such%20an%20exemption.> accessed 7 August 2024.
[40] DPDP Act 2023, s 16(1).
[41] DPDP Act 2023, s 18, 19, 24.
[44] Ministry of Electronics and Information Technology, Government of India, A Free and Fair Digital Economy, <https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf> accessed 3 August 2024.
[45] Ibid.
[46] Judith Clarke, ‘How journalists judge the ‘reality’ of international ‘pseudo-event’ A study of correspondents who covered the final withdrawal of Vietnamese troops from Cambodia in 1989’ [2003] 4(1) Journalism <https://doi.org/10.1177/1464884903004001440> accessed 7 August 2024.
[47] William F. Woo, ‘Defining a Journalist’s Function’ (Nieman Reports, 15 December 2005) <https://niemanreports.org/articles/defining-a-journalists-function/> accessed 7 August 2024.
[48] Lawrence Liang, ‘Free Speech and Expression’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook: The Indian Constitution (Oxford University Press 2016).
[49] Ibid.
[50] Ibid.
[51] Shreya Singhal (n 8).
[52] Liang.
[53] George Orwell, ‘Nineteen Eighty-Four’ (Penguin Classics, 2021).
[54] Shreya Singhal (n 8).
[55] Ibid.
[56] Ibid.
[57] V. G. Row v State of Madras AIR 1951 MAD 147.
[58] Maneka Gandhi v Union of India 1978 AIR 597.
[59] Anuradha Bhasin v Union of India AIR 2020 SC1308.
[60] Dr. Ram Manohar Lohia v State of Bihar And Others AIR 1966 SC 740.
[61] V. G. Row (n 57).
[62] Shreya Singhal (n 8).
[63] State of Madhya Pradesh And Another v Baldeo Prasad AIR 1961 SC 293.
[64] Gautam Bhatia, ‘Goondagiri of the Goonda Act’ (Outlook, 5 August 2024) <https://www.outlookindia.com/national/goondagiri-of-the-goonda-act-news-291593> accessed 10 August 2024.
[65] ‘Siddique Kappan, ‘India journalist walks out of jail after 2 years’ (Aljazeera, 2 February 2023) <https://www.aljazeera.com/news/2023/2/2/siddique-kappan-india-journalist-walks-out-of-jail-after-2-years> accessed 10 August 2024.
[66] Manu Sebastian, ‘Press Freedom At Risk: Why Centre’s Move To Control Online News Space Raises Concerns’ (Live Law, 22 June 2024) <https://www.livelaw.in/articles/press-freedom-at-risk-centres-move-to-control-online-news-space-broadcasting-services-regulation-it-rules-261119?fromIpLogin=85444.3362827007> accessed 10 August 2024.
[67] ‘UN expert warns of dangerous decline in media freedom’ (OHCHR, 8 July 2022) <https://www.ohchr.org/en/stories/2022/07/un-expert-warns-dangerous-decline-media-freedom> accessed 11 August 2024.
[68] Ministry of Electronics and Information Technology, Government of India, A Free and Fair Digital Economy, <https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf> accessed 11 August 2024.
[69] Aashish Aryan and Surabhi Agarwal (n 32).
[70] New York Times v United States 1971 U.S. LEXIS 100.
Jayati Parakh is a third-year law student at O.P. Jindal Global University. Her areas of interest are Constitutional law, Human Rights, Law & Society, and Gender Justice.
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