India, like all countries, is increasingly facing a situation where legal frameworks that made sense before the explosive growth of the internet are proving incomplete or in some cases being re-purposed as blunt instruments of state power. Reforms are urgently needed, and the pressure for reform begins with awareness. This is the first in a series of posts seeking to raise popular understanding of issues of Indian law.
The past few years have seen an explosion in Internet usage in India with approximately a tenth of the country’s population now considered active Internet users.1 While the increased access to and use of online resources is undoubtedly beneficial to the country as a whole, there continue to remain numerous shortcomings ranging from lack of access in rural areas, skewed sex ratios of those accessing the Internet, and lack of adequate infrastructure, etc. There are also problems with the legal framework governing the Internet ecosystem in India that have captured public attention over the last two years, with the media focusing particularly on censorship and surveillance.
Indian law dealing with these two issues is contained in various statutes of which the most important are the Information Technology Act, 2000 (IT Act) and the Indian Penal Code, 1860 (IPC)
The IPC contains broad penal provisions that apply across media platforms while the IT Act applies specifically to computer systems.
Both these enactments (as well as other ancillary enactments such as the Insults to National Honor Act, 1971, The Emblems and Names (Prevention of Improper Use) Act, 1950), etc.,) suffer from numerous deficiencies in terms of substantive content as well as enforcement mechanisms.
Censorship Under the IT Act:
Indian law regarding censorship in traditional media is fairly developed and relatively liberal (at least in theory). Article 19(1)(a) of the Constitution protects the right to free speech and expression irrespective of the medium of communication.
While the Courts have interpreted this right in a broad manner, Article 19(2) permits reasonable restrictions to be placed on the right in view of public policy concerns. 2
Purportedly in accordance with A 19(2), the IT Act contains numerous provisions that can be used to censor online content – notably in Sections 66A, 69A and 79. Most tellingly almost all these instances involve executive action with no system of judicial oversight – in fact under Section 79, the law actively encourages private censorship.
Section 66A has probably received the most media attention over the last year or so due to the many arrests made under this section (notably the arrest of two teenage girls in Palghar, Maharashtra in November 2012 3).
This provision criminalizes the practice of sending an offensive message using a computer resource. The biggest concern in this regard is the extremely wide and ambiguous scope of the provision which could include anything that is considered offensive, menacing, that causes annoyance or inconvenience, that insults, that causes enmity, hatred or ill-will, etc. The punishment for such an offence is three years imprisonment.
The wide phrasing of the provision has ensured that it can be used to criminalize almost any behavior on the Internet (including that which would not constitute a crime in the physical world) and this has been seen in practice as various activists and other have been arrested for posting comments critical of political parties or persons (usually, as illustrated by the aforementioned Palghar case, for posting completely innocuous comments).
The widespread public uproar following the numerous instances of misuse of this provision lead to a Public Interest petition being filed in India’s Supreme Court, which read down the provision holding that the powers under the section (of arrest) were to be used only upon instructions from a senior police official. The provision however continues to remain on the statute books. 4
Two other sections of the Act - Section 69A and 79 have received far less attention from the public, possibly as these are substantive provisions of law and not punitive provisions (as S 66A is). These provisions however set up a system of censorship that is arguably unconstitutional.
S 69A authorizes the government to block any content from being accessed by the public on various grounds.5 An intermediary who fails to comply with directions to block content is liable to be imprisoned for up to seven years.
This provision ensures that the government can block any content it deems to fall within the fairly broad conditions and has been used with mixed results – while no doubt there are instances where content does need to be censored (for instance one of the sparks for the recent communal violence in Uttar Pradesh was the distribution through Facebook of a fake video purportedly showing violence committed against the majority community), practice shows that directions issued by the government lack precision (leading to whole domains and websites being blocked), lack appropriate oversight and accountability mechanisms, etc. The broad and ambiguous nature of the conditions to be satisfied before invoking this power are also cause for concern.
Section 79 of the IT Act requires an Intermediary to observe certain guidelines in order to avail of exemption from liability. These guidelines (issued in 2011) mandate that the Intermediary must take down any information that is inter alia grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, harm minors in any way or otherwise unlawful in any manner whatever, acting upon private complaint or if they discover such content on their own.
This provision essentially makes all intermediaries into watchdogs of the Internet with very limited provisions as to recourse or safeguards – for instance there is no requirement to produce a court order before (or after) mandating a take down. The requirement to act on private complaint for such a wide variety of ‘offences’ (some of which again are not crimes in the physical world – for instance blasphemy is not a crime in India) is disturbing and could be used as a back-door means of censorship. This system also sets up an alternate system of criminal offences and censorship for online media as opposed to traditional media (therefore a physical newspaper can carry an article questioning the existence of God while its online version cannot!).
Various organizations have been campaigning for an amendment to this provision and in fact the Parliament’s Subordinate Committee on Legislation has recommended revisiting these guidelines in order to make them compliant to the Constitution. Further steps are yet to be taken by the Government, which has, however, assured the country that it is not interested in censoring content.
The issue of censorship of online content in India is a tricky one – the Constitution permits censorship in certain limited circumstances. This is a problem as due to the global nature of the Internet, it is very difficult to control content being uploaded in foreign countries and being viewed in India. Further, the thorny issue of who gets to decide to censor content and under what circumstances is a nuanced debate – which unfortunately tends to be hijacked by arguments based on security concerns / need for broad emergency provisions. Most attempts at censorship have therefore been haphazard and inconsistent.
Further, issues raised by communal, defamatory and violent content (particularly towards women) continue to receive very little attention. Particularly worrying is the lack of accountability, transparency and oversight in the system.
One hopes that the Supreme Court will take appropriate action by striking down the relevant provisions in the IT Act thereby forcing the legislature and executive to put in place a more open, equitable and just systems of censorship that truly abides by the Constitutional spirit embodied in A 19(1)(a).
This article is made available by the Author and ThoughtWorks solely for informational purposes and not to provide specific legal advice. ThoughtWorks does not provide legal services and reading this article does not create an attorney-client relationship between you and the Author. You should not use this article as a substitute for competent legal advice from an attorney who is knowledgeable about the relevant law and is authorized to provide legal services in your locale.
1. IMRB I-Cube 2012, All India Estimates based on Census 201. See http://www.dazeinfo.com/2013/01/12/impact-of-poor-english-knowledge-on-internet-penetration-in-india/
2.Such as the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
3. One of the girls posted a comment on Facebook critical of Mumbai being shut down following the death of a political leader. Her friend ‘liked’ the post. Both were arrested inter alia under S 66A, IT Act and S. 295A, IPC (insulting religious beliefs).
4. In end November 2013, a fresh PIL was filed in the Supreme Court by the PUCL challenging inter alia all these provisions of the IT Act as well as rules framed thereunder. The SC has issued notice to the government and is presently seized of the matter.
5. Which are the interests of sovereignty and integrity of India, defense 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.