This article is written by Harsh Mishra who is pursuing a Diploma in Business Laws for In-House Counsels from LawSikho.
Indians immediately get a wistful reminder of the emergency days when they hear the word “sedition”. We have heard the government spokespersons incessantly lament about the horrors of the emergency period, but as it seems, we have failed to apply the lessons from those times and we are doomed to live the past all over again, though only this time without any official declaration from our President. The past year holds witness to many instances where young and old dissenters were slapped with the penal provisions of UAPA and NSA on unfounded grounds, only to be later saved by the judiciary.
Beginning with CAA/NRC protests and Delhi riots, to Tabhlighi Jamaat and Farmers’ protests, the government seems adamant, imposing these stringent laws with a sense of impunity. The sheer arbitrariness in applying these tough laws was evident when the Indian Express reported that the most of the last year NSA cases in UP were against men accused of cow slaughter. No matter how innocent you are in the eyes of law, you might always be held guilty of hurting the vanities of the government. This government came to power with a promise to ward off the ghost of Macaulay but as it turns out, it has very much resurrected him, clothed him with a new fabric, and brought his hands ever closer to our necks. These hands have now breached into the free space of the digital world with an aim to democratize its “anarchist” virtual realm.
The government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (Rules) on 25th of February to be enforced in May this year. Many digital news media companies of the likes of The Wire and Live Law have challenged these rules before the various High Courts across the country alleging that the rules do not stand the test of privacy and the restrictions it proposes to impose on the right to freedom of speech and expression fall short of reasonability. In this article, I point out some of its provisions which may assist the government to silence those who dare speak against its ideology or criticize its policies. But first let me brief you about the yardstick on which we are going to test these rules.
What is sedition?
Section 124A of the Indian Penal Code, 1860 defines the offence of sedition as drafted by Lord Macaulay. The section gives two ways one can commit sedition –
(i) bringing or attempting to bring into hatred or contempt, or
(ii) exciting or attempting to excite disaffection towards,
the Government established by law in India.
The mediums that could be used to bring such hatred or disaffection are of wide import – words, either spoken or written, or by signs, or by visible representation, or otherwise.
But the explanations to the section make it clear that any criticism of the government’s policies or its actions would not amount to sedition.
But the way it has been implemented on the ground right from the times of British Raj is very different. The British used it to punish those with an urge for freedom and those who criticized the government for its predatory policies. Unfortunately, the governments of free India have not only continued with it but have muscled it with yet more stringent legislations. A person cannot be said to have committed sedition if he speaks against the government. It is only when such communication has a tendency or an intention behind it to cause violence and public disorder that it can amount to sedition.
In the name of Fake News
Undoubtedly, fake news is one of the most pernicious evils of social media. Many advantages of social media get overshadowed by this single disadvantage and make us question the limitlessness of the freedom that the digital space provides us. A well-recognized legal principle that one may exercise one’s right to freedom but not at the cost of violating the rights of others might be an inspiration behind these new rules to establish a system that could filter out the fake news. However, at a closer look, the government appears to have devised a way to silence not just its critics but also any commoner who faces any sort of exploitation from the hands of government authorities or politicians.
The government boasts of proposing a self-regulatory mechanism for the regulation of digital content but two key provisions (rule 12(3) and rule 14(2)) in this mechanism tilt the balance in favour of government oversight:
- registration of the self-regulatory body is subject to Ministry of Information and Broadcasting (“MIB)’s satisfaction (rule 12(3)); and
- the interdepartmental committee at level three may hear complaints referred to it by the MIB, thus skipping the first two levels of self-regulation (rule 14(2)(b)).
These new rules regulate the formerly ungoverned world of digital news media but without any mandate from the parent legislation to do so. This is an apparent excessive assumption of powers by the executive without taking the pains of bringing an amendment in the Information Technology Act, 2000. Moreover, this Part has been applied with a broad sweep bringing all “the publishers of news and current affairs content” within its scope. Since ‘news and current affairs content’ has been defined as “newly received or noteworthy content, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, made available over the internet or computer networks” [Rule 2(m)], the rules will arguably seek to regulate a large number of internet users that engage in producing similar content on a very small scale e.g., small blog sites. A criticism anywhere would get difficult.
The MIB would just have to slip a complaint into the mailbox of the Interdepartmental committee and your fate could be decided without even availing you with an opportunity of being heard. This would prevent people from raising their voices against any wrong committed by the government authorities, or to report any instance of misgovernance which otherwise were one of the biggest reliefs that the digital space provided us.
Dislike and Delete
Any content that may not suit the ideology of the government can be ordered to be removed or blocked at its sweet will. Rule 16 empowers the Secretary of Ministry of Information and Broadcasting, in any case of emergency nature, for which no delay is acceptable, to examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of section 69A of the Act. Section 69A gives the following grounds for blocking the content – in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.
Similarly, Rule 3(1)(d) has empowered it to force any social media platform that it shall remove or disable access to any unlawful information, which is prohibited under any law for the time being in force in relation to the:
- interest of the sovereignty and integrity of India;
- security of the State;
- friendly relations with foreign States;
- public order;
- decency or morality;
- in relation to contempt of court;
- incitement to an offence relating to the above, or
- any information which is prohibited under any law for the time being in force.
In the past few years, the government has issued many arbitrary orders in the name of maintaining “public order” e.g., internet suspension. India leads the global tally in suspension of internet services over the past decade whether during the CAA protests or Delhi riots and recently during the Farmers’ protests due to which many children couldn’t even attend their online classes, a breach of their right to education.
The longest instance of high-speed internet being banned by an elected government, for 552 days, was in Jammu and Kashmir after August 4th, 2019 for fully to be restored only on February 5th, 2021. Such long delay even after the Supreme Court had upheld the right of internet as a fundamental right under the Constitution in its judgment in Anuradha Bhasin v. Union of India in January, 2020. The recent history showcases how arbitrarily these grounds can be used for silencing the dissent.
The rules designate social media platforms with minimum 50 lakh registered users as ‘significant social media intermediaries’ which are subject to maximum compliances. The social media giants like Facebook and Twitter automatically fall under this category. But the government has retained the power to put any social media platform, big or small, into this category given that it poses a “material risk” to the sovereignty or integrity of India. Again, it has not been made clear what would actually amount to material risk, for a small social media company, which is mostly a startup, to be pulled into this category. The government, on one hand, wants to make the Indian environment conducive to businesses and startups and on the other hand it turns that environment into one of fear and skepticism by putting them under the burden of such heavy compliances.
The Eye of Providence
The messaging platforms like WhatsApp and Signal have to trace the first originator of any information for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. This is one of the strongest and the most manipulative tools in government’s kit to clamp down on its dissenters.
The originator may not have the knowledge about the extent to which his/her message would have gone viral. It might be that he/she made that text without any intention or even apprehension of causing any harm to the sovereignty or integrity of India or inspiring violence to disturb public order, yet he/she might be put behind the bars on the ground of that text without any bail for a long time. The precedents are endless from Safoora Zargar to Dr. Kafeel to Disha Ravi and many others who became victims of State’s prowess for just criticizing the policies and actions of the government.
The breach of privacy is writ large on the face of this provision. The government failed to maintain a fine balance between the right to privacy of an individual and the public interest. The platform would be required to break the end-to-end encryption protocol to provide this data to the government. Further, in the absence of a data protection law, any attempts to weaken encryption through backdoors or key escrow systems would undermine the privacy and security of all users because these vulnerabilities could be exploited by criminals as well.
The clauses (g) and (h) of Rule 3(1) allows social media platforms to retain any deleted information of the user for the period of 180 days and upon receiving any order from the government in this regard, it must provide such information to the government. The purposes for collecting such information are the verification of identity, or for the prevention, detection, investigation, or prosecution, of offences under any law for the time being in force, or for cyber security incidents. The government’s earlier formidable stance of being concerned about the data storage by these tech giants appears to have lost its ground in front of the government’s desire to suppress the voice of dissent.
Whether this “Clean Indian Digital Space” mission would turn out to be biased against the opposition still needs to be seen after these rules come into enforcement. The fearless freedom of expression is the most valuable amongst the advantages provided by the free space of the digital world, one that nourishes a liberal democracy. The government’s industrious effort to liberate the netizens of their freedom would be a self-destructive step for India in the long run. A competition with China in this regard would destroy the foundations of democracy in India. The Freedom House Report recently demoted India to the category of “partly free” countries, citing sedition charges against dissenters as one of the reasons for such demotion.
It is high time for the third organ of the State to step in for the first two who seem to have been infected with the virus of absolutism. The Supreme Court has, though, called these rules as toothless hinting on the lack of the enforcement mechanism therein, we still have hope that with a new Chief Justice coming in, we could see some changes in the attitude of the highest court towards these rules at least after seeing how they come into play in coming months. One still needs to see how these rules are implemented on the ground but India’s experience with the laws that restrict free speech has never been good in the past unless and until the judiciary comes to save the day.
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