CONSTUTIONAL VALIDITY OF CURBING FREEDOM OF SPEECH VIA THE NEW INFORMATION TECHNOLOGY RULES, 2021

Reading time : 12 minutes

INTRODUCTION

The freedom to express our ideas and opinions is one of paramount importance as it ensures that the voice of our society comprising of numerous other intellects who are not in power and also the reasonable human being is taken into account while devising policies for them and also for the society to have the power to express any policies that fly in the face of public interest.[1] However, this does not seem to be the position taken by the government indicative by them bringing into force the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[2] (hereinafter referred to as “Intermediary rules”) which seems to be a culmination of all the steps taken by the government to regulate free speech regarding farmer protests, even critiques of the government thus stifling the public’s power to voice their opinion.

The suppression of public opinion and dissent in any form came to the limelight during the farmer protests[3] which has been ongoing since November of last year, these unprecedented protests orchestrated by farmers primarily from the region of Punjab is opposing the recent legislations namely, The Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020[4]; Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020[5] and Essential Commodities (Amendment) Act, 2020[6] were all enacted with an aim to further extend the scope of trade areas from select areas to collection as well as e-commerce while making it easier for companies to enter into contracts to be able to fulfill such trades with ease thus essentially commercializing/privatization of Agriculture as we know it and these laws came to be known as the Farm Bills, 2020 (hereinafter referred to as “Farm Bills”),.

However, these farm bills were not received well by the general public, legal experts, media individuals, intellectuals and more importantly the farmers felt betrayed by these legislations as the perception was that the market is being opened up in the above method would hinder the farmers as major corporations would form cartels forcing farmers to sell their produce at low prices with the legislation also failing in providing for Minimum Support Price (MSP) thus creating more doubts in the mind of many as to the object behind this legislation as the lack of an MSP will put the farmers on a back foot in case a cartel is formed,[7] a highly possible outcome which could lead to suppression of farmers who form the backbone of our economy.

This dissatisfaction started to be raised not only by farmers but by various public figures as well as media outlets[8] where the said individual or organization was voicing their displeasure with the government for taking the above action and leaving the farmers in a dire state that the farmer bills have the potential to create in the market. These voices were met with stringent actions by the government, actions headlined by the filing of multiple charges of sedition against editors of The Caravan magazine[9], which was doing its job as media to express their opinions and their opinion was in alliance with the farmers and they were supporting their protests by disseminating accurate information which is the function of a media house as well as the right of individuals but unfortunately this is not the case as evidenced by the charges of sedition filed against these editors by the Government.

This was not the only case as more cases were charged against politicians such as Shashi Tharoor who represents the opposition for allegedly ‘misreporting’ and ‘spreading disharmony’[10]; another case for offences of imputations, assertions prejudicial to national integration and statements conducing to public mischief was charged against the founding editor of The Wire for publishing a story questioning the circumstances leading up to the death of a protestor[11], such arrests of dissenting voices can only be treated as a construed attack on freedom of expression.  

These actions by Government of stifling media houses can be traced back to the Citizenship Amendment Act, 2020 (CAA) protests,[12] one of those incident being the abrupt disruption of Kerala’s Media One broadcast led by anchorman Vinesh Kunhiraman who was pulled of the air as per directions issued by the Ministry of Information and Broadcasting. Their order to block the channel for 48 hours was issued based upon the channels coverage of the mob attacks in New Delhi that took place during the CAA protests which depicted the attack in a way that seemed “critical toward Delhi police and R.S.S.”[13] 

However it is not just media houses who are affected by government interference but also individuals as evidenced by the arrest of comedian Munawar Faruqui[14] whose political satires were considered to be insulting of Hindus and also Amit Shah, thus highlighting how satire’s not reflective of the governments agenda are also being suppressed by arrests, thus sowing a seed of caution among intellectuals of the society to not raise their opinions if it is not in accordance with the nation’s agenda. The passage of these intermediary rules makes it even easier for the government to regulate such content and the features which make it so are going to be discussed below.

The intermediary rules feels like a culmination of all the above actions, being brought into force with the intention to regulate ‘obscene’ and ‘anti-national’ content being published on the internet by ensuring that social media intermediaries are made to do their due diligence regarding such content while also providing a grievance redressal mechanism to resolve issues that arise out of violating the intermediary rules. However, in the opinion of many intellectuals these rules will be used to monitor individual activity leading to a surveillance state in the near future[15] and now we shall analyse these rules to gauge the effects they could have.

INTERMEDIARY RULES

The rules marks a huge change in Indian law with the recognition of the Convergence of Media with digital media’s definition including within its ambit, ‘intermediaries’ and ‘publisher of news and current affairs content or a publisher of online curated content’[16]. This change was received by many as an overreach of power[17] as the parent act namely the Information Technology Act, 2000 (IT Act) did not have purview over digital media apart from the paramount issue of the restrictions they place on free speech. So, the obvious question arises as to the constitutionality of these rules delegated to Ministry of Information and Technology for online curated content as well as Ministry of Information and Broadcasting (hereinafter referred to as ‘MIB’) for regulating digital media.

This paper will be dealing exclusively with the restriction placed on digital media by these rules which is dealt with in Part III of the Intermediary rules which lays down that the code of ethics brought into force are applicable to Digital Media which takes into ambit online news and Over the Top (OTT) platforms which are to be regulated by MIB.

The Code of Ethics attached in the annexure to the rules governs digital media[18], hence any communication on intermediaries such as twitter, Facebook, etc. will come under the purview of this code, which lays down certain factors that shall be taken into consideration, when deciding to feature or transmit or publish or exhibit any content, these factors are as follows[19]:

  • content which affects sovereignty and integrity of India;
  • content which threatens, endangers or jeopardizes security of the state;
  • content which is detrimental to India’s friendly relations with foreign countries;
  • content which is likely to incite violence or disturb the maintenance of public order.

Apart from laying down the above factors to be followed on digital media platforms ranging from intermediaries to news outlets using such platforms the rules also stipulated that News and current affairs publishers also have to abide by Norms of Journalistic Conduct under the Press Council Act, 1978; Programme code under S.5 of Cable Television Networks Regulation Act, 1995 and content prohibited by any existing law shall not be published or transmitted.[20]

The intermediary rules apart from laying down factors determining the publishing of information also laid down redressal mechanisms for individuals to file complaints against the publisher in relation to code of ethics. The rules have set up a complex mechanism for redressal of complaints which shall be discussed below[21]:

  • Furnishing and processing of grievance as provided in Rule 10 provides any person with the power to furnish his grievance on the mechanism established by publisher under Rule 11.
  • Rule 11 envisions a simple self-regulating mechanism has been envisioned where the publisher appoints a grievance officer who shall be responsible for the grievances related to the code of ethics addressed to him.
  • Level II of self-regulating mechanism is laid down in Rule 12 where a self-regulating body constituted by publishers or their associations and headed by a retired judge of the Supreme Court or a High court or even an expert in the field of Media. The body will have the power to hear grievances related to Code of Ethics and also issue advisories admonishing or warning the publisher.
  • Rule 13 establishes an oversight mechanism headed by MIB which shall publish charter for self-regulating bodies, including codes of practice. It shall also establish an inter-departmental committee which shall hear grievances.
  • Inter-departmental committee is established under Rule 14 which states that the body should consist of representatives from MIB and various other ministries ranging from Women and Child development to Defense. This committee shall hear the grievances referred to it by the Ministry or arising out of decisions taken at Level I or Level II of the self-regulating mechanism. The committee after examining complaints makes recommendations to the Ministry who takes action, the recommendations are along the following line:
  • Warning, censuring, admonish or reprimand such entity; or
  • Requiring an apology by such entity; or
  • Requiring such entity to include a warning card or a disclaimer; or
  • In case of online curated content, direct a publisher to-
  • Reclassify ratings of relevant content; or
  • Edit synopsis of relevant content; or
  • Make appropriate modifications
  • Delete or modify content for preventing incitement to the commission of a cognizable offence relating to public order;
  • In cases, where the committee is satisfied that there is a need for taking action in relation to reasons enumerated in S.69(A) of the IT Act, it may recommend such action.
  •  Rule 15 lays down the procedure for issuing of direction which shall be passed by MIB.
  • Rule 16 gives power to the MIB for blocking of information in cases of emergency which shall by default block the publisher for 48 hours.

A deep analysis of the provisions in the rules and the actions taken by the Government from the CAA protests to curb freedom of expression over digital media platforms can give cause for concern. As reasons such as ‘content threating security of state’ or ‘content likely to incite violence or disturb maintenance of public order’ are being interpreted in such a broad manner that freedom of expression is being threatened in India.

The incidents discussed above in this paper such as the arrest of CAA or Farmer protestors, arrest of comedians for political satire, the arrest of the Wire and Caravan magazine’s editors as well as politicians for  voicing their support to these protests has been for reasons such as ‘statements conducing to public mischief’ or ‘assertions prejudicial to national integration’ making these arrests seem arbitrary as these arrests were made in a time where there was existent public riots incited way prior to the publications made by the above individuals.

When the above reasons are attributed to the shutdown of Kerala’s Media One for content that the ruling government felt was critical of Delhi police and R.S.S thus highlighting how any future criticisms of their actions will be dealt with. Apart from news media and twitter the regulation of content on OTT like television shows and movies is a grave violation of freedom of expression[22], as movies have been protected under the freedom of expression to represent the cinematographer’s opinion and the ability to modify such content after its release on OTT platforms is violative of the cinematographer’s rights under Art.19.[23]

CONCLUSION

With various organizations filing petitions challenging the intermediary rules the judiciary faces another challenge to ensure that digital media is not abused to create disorder. But on the other hand, they have a responsibility to protect the freedom of expression individuals have on these digital media platforms.

The court in many of its precedents has highlighted the importance of press and freedom of expression such as the case of India Express Newspapers Ltd vs. Union of India,[24] the Supreme Court of India has stated that the “freedom of press is at the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society.”

In Printers (Mysore) Limited vs. CTO,[25] the court has lent generous support in favour of free flow of information and communication and has vested the courts in the country with the primary duty of upholding the same and invalidating any administrative actions which would cause an interference in this.

In the case of LIC vs. Mannubhai Shah,[26] the Supreme Court stated that the freedom of speech and expression must be interpreted to mean the freedom to propagate one’s views by word of mouth through any media. The court observed: “Freedom to air one’s view is the lifeline of any democratic institution and any attempt to stifle, or suffocate, or gag this right would sound a death knell to democracy and would held usher in autocracy or dictatorship”. The court has also explicitly recognised the right to criticize a government as a part of Art. 19 with the case of Kedar Nath Singh v. The State of Bihar,[27] recognizing how a democracy is different from a monarchy in the sense that people are supreme authority and the state authority is a servant of the people. It also observed that such people’s opinion when it is mere criticism of the government is not sedition unless such criticism can be linked to incitement of violence or breach of public order.

The court through the above precedent has made it abundantly clear that the very ethos of a democracy is extracted from the freedom of expression provided to the individuals in democracy. However, the government has been changing the standards laid down for placing restrictions on freedom of speech. For example the right to criticize the government recognised by the Kedar Nath case has set a bar that the criticism when linked with incitement of violence or breach of public order can be restricted otherwise it cannot be. But this is not the case in application as Shahi Tharoor’s tweets, The Wire and Caravan editors published material did not incite riots as they had expressed their opinions after the riots on January 26th, 2021 to ensure that accurate information is being provided to the people which is a fundamental right under Art.19.[28]

Such actions to suppress the voice of the people should be brought to the forefront of the issues that India is facing nowadays and one the judiciary has to resolve quickly to ensure the standards they have set for freedom of expression are not being violated by the government. Such acts are clearly unconstitutional and the rules which ultimately make the process easier for the government to impede freedom of speech and expression should be held unconstitutional as per the bar they have set for this fundamental right, if such attempts fail then some serious questions should be raised about the political scenario in India.

Is India heading towards a surveillance state? Is India losing its identity as a democracy?, Are some crucial questions that come to mind with such control being exercised by the government over curbing our freedom of expression. 


[1] Justice Madan B. Lokur, “Why is it important to Preserve and Protect our Freedom of Speech, Expression and Right to Protest”, The Leaflet, October 15th, 2020, available at:https://www.theleaflet.in/why-is-it-important-to-preserve-and-protect-our-freedom-of-speech-expression-and-right-to-protest/# (last visited on March 13th, 2021).

[2] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rues 2021, India, available at: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf (last visited on March 15th, 2021). 

[3] Mujib Mashal and Sameer Yasir, “Modi’s response to Farmer Protests in India Stirs Fears of a Pattern”, New York Times, February 3rd, 2021, available at: https://www.nytimes.com/2021/02/03/world/asia/india-modi-farmer-protest-censorship.html  (last visited on March 16th, 2021).

[4] The Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (Act 21 of 2020)

[5] Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (Act 20 of 2020)

[6] Essential Commodities (Amendment) Act, 2020 (Act 22 of 2020)

[7] Pragati K.B., “Explainer| Why are the Agricultural Bills being opposed”, The Hindu, September 21st, 2020.

[8] Niharika Sharma, “A Timeline of the months-long farmer protests in India”, Quartz India, January 29th, 2021, available at: https://qz.com/india/1920840/a-timeline-of-the-months-long-farmer-protests-in-india/ (last visited on March 16th, 2021). 

[9] The Wire Staff, “Police in 3 states File Sedition Case against Tharoor, Journalists for tweets on Farmer’s Rally”, The Wire, January 29th, 2021, available at: https://thewire.in/media/up-police-files-sedition-case-against-tharoor-sardesai-mrinal-pande-and-others (last visited on March 16th, 2021).

[10] Ibid.

[11] The Wire Staff, “UP Police register FIR against The Wire’s Siddharth Varadarajan for Tweet”, The Wire, January 31st, 2021, available at: https://thewire.in/rights/fir-the-wire-siddharth-varadarajan-tweet-uttar-pradesh-tractor-rally-farmer-death (last visited on March 16th, 2021).

[12] Taran Deol, “CAA protestors arrest ‘designed to send chilling message’: UN asks India to free activists”, The Print, June 26th, 2020, available at: https://theprint.in/india/caa-protesters-arrest-designed-to-send-chilling-message-un-asks-india-to-free-activists/449401/ (last visited on March 16th, 2021).

[13] Vindu Goel and Jeffrey Gettleman, “Under Modi, India’s Press Is Not So Free Anymore”, New York Times, April 2nd, 2020, available at: https://www.nytimes.com/2020/04/02/world/asia/modi-india-press-media.html?action=click&module=RelatedLinks&pgtype=Article (last visited on March 16th, 2021).

[14] Parth M.N. and Shashank Bengali, “The young Indian stand-up who went to jail for a joke he didn’t tell”, Los Angeles Times, February 5th, 2021, available at: https://www.latimes.com/world-nation/story/2021-02-05/india-comedian-free-speech-munawar-faruqui (last visited on March 17th, 2021).

[15] Internet Freedom Foundation, “Explainer: How the New IT Rules Take away Our Digital Rights”, The Wire, February 26th, 2021, available at: https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights (last visited on March 17th, 2021).

[16] Supra Note 2, Rule 2(i)(ii).

[17] Nikhil Pahwa, “New IT rules are an overreach, and will impact our freedoms”, Times of India, March 14th, 2021, available at: https://timesofindia.indiatimes.com/blogs/toi-edit-page/new-it-rules-are-an-overreach-and-will-impact-our-freedoms/ (last visited on March 17th, 2021).

[18] Supra Note 2, Rule 8.

[19] Supra Note 2, Code of Ethics, Rule II.

[20] Supra Note 2, Code of Ethics, Rule I.

[21] Supra Note 2, Rules 10-16.

[22] Akshata Singh, “Government of India to Regulate OTT Platforms”, available at: https://globalfreedomofexpression.columbia.edu/updates/2021/01/government-of-india-to-regulate-ott-platforms/ (last visited on March 18th, 2021).

[23] Shri Anand Patwardhan v. Central board of Film Certification, 2004 Cri LJ 856 (Mh).

[24] (1985) 1 SCC 641.

[25] (1994) 2 SCC 434.

[26] (1992) 3 SCC 637.       

[27] 1962 AIR SC 955.

[28] Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, 1995 SCC (2) 161 .

Author: KALLURI SIDDHARTH REDDY

Editor: Kanishka VaishSenior Editor, LexLife India.

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