Re-Examining Section 69A in Light of Recent Media Blackouts and Rescuing Article 19

*Rajyavardhan Singh

Background

Recently, the social media platform X (formerly Twitter) withheld the account of Hindutva Watch, an independent research initiative headquartered in Cambridge, USA. This action was in response to a legal demand from the central government, asserting that the content of Hindutva Watch violated the Information Technology Act, 2000 (“IT Act”).

Hindutva Watch is an independent research initiative that monitors reports of attacks on members of religious minorities for their faith by radicalized Hindus and Hindutva militia groups in India. The blocking of their account, coupled with recent instances where the government has increasingly ordered the takedown of content, blockades, and suspensions of accounts, raises concerns. Given that X issues only a vague legal notice without revealing specific reasons, and considering that the review committee lacks any record of information, it becomes imperative to critically analyze this phenomenon within the current legal framework. Such scrutiny must extend to understanding its ramifications on the fundamental right to freedom of expression as protected under Article 19 of the Indian Constitution.

Section 69A and Its Constitutionality

Section 69A of the Information Technology Act, 2000 is a provision in the Indian legal framework that empowers the government to block online content in the interest of the sovereignty and integrity of India, defence of the country, security of the state, friendly relations with foreign states, public order, or for preventing incitement to the commission of any cognizable offence. The IT Act, passed as an amendment in 2008, has been the law for about one and a half decades. Although it has had its constitutionality upheld by the Apex Court when challenged in the Shreya Singhal v Union of India case, however, recent developments of media blockades and takedowns have only exposed the inherent flaws in the legislation, alongside the government’s (mis)use of this authority to limit free speech in the country.

Court’s Ruling in @Shreya Singhal v. Union of India

The primary ruling in the Shreya Singhal v. Union of India case centred on the unconstitutionality of Section 66A of the IT Act, which criminalises the sending of offensive messages through a computer or other communication devices. This particular section, relating to restrictions on online speech, was struck down on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Indian Constitution.

The apex court highlighted the importance of safeguarding online free speech, expressing concerns over the “chilling effect” of Section 66A. Further, the court criticized the lack of proportionality in Section 66A, citing its arbitrary and excessive application. Additionally, while addressing intermediary liability, the court clarified the safe harbour provision under Section 79, asserting that intermediaries would not be held responsible for third-party content if compliant with prescribed guidelines.

At this instant, however, the application of Section 69A appears contradictory to the judgment's reasoning in striking down Section 66A. While upholding Section 69A, the Court observed that blocking could only be resorted “in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order”. It was further highlighted by the honourable court that these were the same interests for which Article 19(2) of the Constitution permitted restrictions on free speech. According to the Court, this demonstrated that Section 69A restricted expression while keeping itself in line with the constitutional standards on free speech.

Limitations in SC’s Reasoning

The court's justification for upholding Section 69A and aligning it with Article 19(2) exhibits inherent flaws. While many grounds undeniably fall under the purview of Article 19(2), Section 69A broadens its scope by introducing terms such as “defence of India,” which remain undefined in both the Constitution and the IT Act. 

Furthermore, the Supreme Court overlooked a crucial distinction: "reasonable restrictions" under the Constitution are supposed to be imposed through a general law, whereas Section 69A allows the Central Government and its officers to put such a restriction by a mere order. Unlike in the case of a law, a bureaucrat's directive lacks the transparency provided by a public parliamentary process. This absence of clarity becomes evident when bureaucrats issue directives for website blocking or communication interception using vague terms like ‘security and integrity of India’, etc.

How does Section 69A prove to be in contradiction with the Judgement?

In the Shreya Singhal judgment, the court highlighted the vagueness and overbreadth of Section 66A, expressing concerns that its wording was capable of being misused to curb legitimate expression. The judgment emphasized that the provision lacked clarity and could lead to arbitrary and excessive restrictions on free speech. By striking it down, the court effectively curtailed the potential for misuse of power by authorities to suppress speech protected under the constitutional guarantee of freedom of speech and expression.

However, Section 69A of the Information Technology Act grants substantial discretionary powers to the executive, particularly concerning individual privacy. Despite governance by Section 3 of the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009, which requires written orders from designated authorities, including high-ranking officials, significant gaps in checks and balances emerge upon closer examination. Rule 22 of the IT Rules, 2009 stipulates scrutiny by a review committee under Rule 419A of the Indian Telegraph Rules. Unfortunately, this committee consists solely of executive members, lacking essential judicial oversight. The absence of judicial representation diminishes the credibility of the review process, rendering it more of a formality than a robust oversight mechanism. Additionally, the impractical workload of the review committee, as revealed in the Justice BN Srikrishna committee report, raises doubts about the effectiveness of the existing checks and balances.

While striking down Section 66A as unconstitutional, the Court highlighted the concept of a chilling effect on free speech. The judgment emphasized that vague and overbroad laws could lead to self-censorship by individuals who fear legal consequences, thereby chilling the exercise of their right to freedom of speech and expression. The Court underscored the importance of clarity and precision in legislation to prevent a chilling effect on free speech and to safeguard individuals from arbitrary and excessive governmental interference.

This principle holds relevance in the context of Section 69A, which raises concerns about a chilling effect on freedom of speech. Intended to protect 'sovereignty and integrity,' Section 69A grants broad surveillance powers with unclear definitions and biased procedural safeguards. The ambiguity in its framework raises fears of potential misuse against dissenting views, intensifying the chilling effect on open expression. This legal uncertainty fosters self-censorship, impacting not only what individuals express but also influencing the information others engage with. The multifaceted impact on free speech underscores the necessity for a more precise legislative approach aligned with constitutional principles.

The third facet of concern revolves around the lack of proportionality. The court applied a form of proportionality analysis by assessing whether the restrictions imposed by Section 66A were proportionate to the legitimate aims of protecting public order, preventing incitement to an offense, etc. The court found that the section failed this test of proportionality and, as a result, declared it unconstitutional.

Again, the implementation of Section 69A appears to lack a nuanced approach that considers the proportionality test when restricting freedom of speech and expression. This test involves ensuring that the government demonstrates the legitimacy of its objective for imposing such restrictions and establishes a rational connection between the restriction and the objective, thereby proving that the action is immediately necessary. Moreover, the restriction should be proportional to the importance of the legitimate aim pursued.

Notably, Hindutva Watch was not informed about which specific content violated the IT Act. Blocking the entire account, which served as a crucial voice documenting hate crimes, for allegedly problematic content is akin to burning down a library to find a single offensive book. This disproportionate response not only stifles legitimate discourse on minority rights but also the opacity surrounding the government's takedown notice leaves the organization with no chance to defend itself or modify content, further highlighting the absolute lack of proportionality applied in dealing with the matter.

Conclusion

In conclusion, it is imperative to underscore that the mere execution of certain governmental actions does not inherently validate their legality. The introduction of Section 69A and the Blocking Rules raises substantial apprehensions regarding due process, particularly concerning online free speech. Unlike traditional media, where restrictions are aimed at identifiable entities, these new governmental constraints affect the content accessible to numerous citizens, often mediated through platforms such as X, Facebook, and others.

These measures starkly exemplify the authoritarian inclinations of the government, signalling a suppression of media and a violation of the fundamental right to freedom of speech and expression for all citizens in India, the largest democracy.

*Rajyavardhan Singh is a 1st-year law student, pursuing B.A. LL.B. at Rajiv Gandhi National University of Law, Punjab

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.