Is India’s website-blocking law constitutional? – I. Law & procedure

Introduction:

The Information Technology Act, 2000 (“IT Act”) is no stranger to litigation or controversy. Since its enactment in 2000, the IT Act has come under stringent criticism, both for the alleged Constitutional infirmities of its provisions and Rules, as well as for the way it is implemented. In recent years, Sections 66A (re: criminal liability for offensive, annoying or inconveniencing online communications), 67A (re: obscene 69A (re: website-blocking) and 79 (re: intermediary liability) have all come under attack for these reasons.

Today, these Sections and several others have been challenged before the Supreme Court. A total of ten cases, challenging various Sections of the IT Act, are being heard together by the Supreme Court. This is a welcome occasion, for the IT Act desperately needs judicial review. Nikhil Pahwa over at Medianama provides an update and the list of cases.

Among the challenged provisions are Section 66A, Section 79 and Section 69A. Section 66A was and continues to be used wantonly by the State and police. A student was recently arrested for a Twitter comment regarding Cyclone Hudhud, while anti-Modi comments led to several arrests earlier in the year (see here, here and here). At CIS, we have previously subjected Section 66A to constitutional analyses. Pranesh Prakash traced the genealogy of the Section and its import in targeting offensive, annoying and inconveniencing communications and spam, while Gautam Bhatia examined the Section’s overbreadth and vagueness. The casual wording and potential for misuse of Section 79 and the Information Technology (Intermediaries Guidelines) Rules, 2011 led Ujwala Uppaluri to offer strong arguments regarding their violation of Part III of the Constitution.

Similar infirmities also handicap Section 69A and its Rules. This provision empowers the Central government and officers authorised by it to order the blocking of websites or webpages. Website-blocking is permissible for reasons enumerated in Section 69A, and in accordance with the process laid out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public (sic)) Rules, 2009 (“Blocking Rules”). In our view, Section 69A and the Blocking Rules are also unconstitutional, and liable to be declared as such by the Supreme Court. We provide our analysis in this post and the next.

Section 69A, IT Act:

Section 69A and the Blocking Rules provide for website-blocking in accordance with enumerated reasons and process. The Section reads as follows:

69A. Power to issue directions for blocking for public access of any information through any computer resource.-

(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest 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, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

As you will notice, the Central government may block any information that is “generated, transmitted, received, stored or hosted” in any computer. This will extend, clearly, to any webpage available and/or hosted in India. The Government can order website-blocks if it is satisfied of the necessity or expedience for this on the basis of (any of) six reasons. These reasons are:

1. Sovereignty and integrity of India,
2. Defense of India,
3. Security of the State,
4. Friendly relations with foreign states,
5. Public order,
6. Preventing incitement to the commission of any cognizable offence relating to above.

If the Central government is convinced it has a valid reason, then it must follow the blocking procedure set out in the Blocking Rules, which were notified on 27 October 2009. Before entering into an analysis of the Blocking Rules, let us understand the blocking procedure.

The Blocking Procedure:

I will explain the blocking procedure in 4 steps: (1) Relevant designations and committees; (2) Procedure to make and examine a blocking request, and issue blocking direction; (3) Blocking in special circumstances; and (4) Review of blocking directions.

(1) Relevant designations and committees:

Designated Officer (“DO”): The Central government notifies an officer not below the rank of Joint Secretary as the Designated Officer, who will issue the blocking direction ot the relevant intermediary or agency [Rule 3]. By a notification dated 20 January 2010, the DO is the Group Coordinator, Cyberlaw Division, Department of Information Technology (DIT). Unfortunately, I was unable to locate the Group Coordinator, Cyberlaw Division on the website of the Department of Electronics and Information Technology (DeitY, the name to which DIT was renamed in 2012). I am also unable to find a notification updating the designation of the DO. Presumably, Dr. Gulshan Rai, Director General (Cyberlaws & E-security), DeitY, continues to be the DO.

Nodal Officer (“NO”): Every organization designates one of its officers as a Nodal Officer, who will receive blocking requests and forward them to the DO [Rule 4]. ‘Organisation’ is defined in Rule 2(g) as Ministries or Departments of the Government of India, State governments and Union Territories, and any Agency of the Central government notified in the Official Gazette. I am unable to find on the DeitY website a notification explaining which government Agencies are ‘organisations’ under Rule 2(g).

Intermediary Contact: Every intermediary also designates one person to receive and handle blocking directions from the DO [Rule 13].

Committee for Examination of Request (“CER”): The 5-membered CER comprises the DO as Chairman, along with officers not below the rank of Joint Secretary from the Ministries of Law & Justice, Home Affairs, Information & Broadcasting and CERT-In [Rule 7]. The CER examines each blocking request, before issuing recommendations to the DO to block or not to block. Regrettably, I am unable to identify the current membership of the CER, as no document is available that gives this information. However, the CER’s composition in 2010 may be gleaned (see Annexure III).

Review Committee (“RC”): Rule 2(i) defines the RC as the body set up under Rule 419A, Indian Telegraph Rules, 1951. As per Rule 419A(16), the Central RC is constituted by the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom).

(2) Blocking procedure:

The Blocking Rules stipulate that the entire blocking procedure, from examining a blocking request to issuing a blocking direction, must be carried out within 7 days from the date on which the DO receives the blocking request from the NO [Rule 11].

(a) Making a blocking request: Any person may send a request for a website-block to an NO of any ‘organisation’ (“outside request”). Alternatively, the NO may himself raise a blocking request. The organization has to examine each outside request and be satisfied that it meets the requirements of Section 69A(1), IT Act. Once it is satisfied, the NO forwards the blocking request to the DO. Outside requests must be approved by the Chief Secretary of the State or Union Territory, before they are sent to the DO. [See Rule 6 for this procedure]

(b) Examining a blocking request: Once the DO receives a blocking request, he/she places it before the CER. The DO tries to identify the person/intermediary hosting the troubling information, and if identified, issues a notice seeking their representation before the CER. Foreign entities hosting the information are also informed over fax/email. The person/intermediary has 48 hours from the date of receiving the DO’s notice to make its representation.

After this, the CER will examine the blocking request. It will “consider whether the request is covered within the scope of Section 69A(1)”, and whether it is justifiable to block [Rule 8(4)].

(c) Blocking direction: The DO then places the CER’s recommendation to block or not to block before the Secretary (DeitY) for his/her approval. If and once approval is granted, the DO directs the relevant Agency or intermediary to block the website/page.

(3) Blocking in special circumstances:

(a) Emergencies [Rule 9]: In an emergency “when no delay is acceptable”, the DO passes over the blocking procedure described above. With written recommendations, the DO directly approaches the Secretary (DeitY) for approval of blocking request. If satisfied, the Secretary (DeitY) issues the blocking direction as an interim measure. Nevertheless, the DO is required to place the blocking request before the CER at the earliest opportunity (in any case, not later than 48 hours after blocking direction).

(b) Court orders [Rule 10]: If a court has ordered a website-block, the DO follows a procedure similar to an Emergency situation. He/she submits the certified copy of order to the Secretary (DeitY), and then initiates action as ordered by the court.

(4) Review of blocking directions:

The RC is to meet once in 2 months to evaluate whether blocking directions issued under the Blocking Rules are in compliance with Section 69A(1) [Rule 14]. No other review or appeal mechanism is provided under the Blocking Rules. Nor are aggrieved parties afforded any further opportunities to be heard. Also note that Rule 16 mandates that all requests and complaints received under the Blocking Rules are to the kept strictly confidential.

In the next post, I will subject Section 69A and the Blocking Rules to a constitutional analysis.

Blocking procedure poster:

CIS has produced a poster explaining the blocking procedure (download PDF, 2.037MB).