It leaves a sense of confusion and wonder about why our own government formed under the Constitution may be failing to fulfil its obligations when strangers who trade in our data for profit are seemingly more eager.
The growing digitisation of Indian society is reflective in the ongoing protests by farmers. Battles are being waged every day in gram sabhas and protest sites as well on social media. Each day on Twitter, a new hashtag trends for and against the farm laws, or farm leaders, or the promoters of leading Indian conglomerates, leaders of Opposition and even the Prime Minister. This conversation is public, chaotic but also democratic. In this adversarial contest, a recent government direction was issued to the social media platform, ordering it to shut down user accounts connected with these protests. This direction presents a clear breach of fundamental rights but also reveals a complex relationship between the government and large platforms on the understanding of the Constitution of India.
To understand why this is important one needs to be on Twitter. Despite a lower number of users in India when compared to Facebook or WhatsApp, the platform feeds a larger ecology of digital media. This is because Twitter is the default social network for political leaders and foreign governments to make statements, as a large number of journalists are present on it. This often makes Twitter the homepage where news breaks first and loudly. Its speed, velocity, and quality of recipients is unparalleled as it integrates with television and press publications. Hence, Twitter is a significant forum for the ongoing adversarial contest for narrative control on the farm laws.
In this ongoing tussle, the government has, over the last week, sought to exercise powers under Section 69A of the Information Technology Act to block user accounts critical of the farm bills. While the specific legal order issued is secret, as per reports and observable behaviour on the platform, these account suspensions are in a high number and include a diverse category of users from farm unions, activists and even a press publication. This brings into focus the condition of secrecy that is threshold objection to multiple strands of our fundamental rights. It conflicts against the rights of the users who are denied reasons for the censorship. Secrecy also undermines the public’s right to receive information, which is a core component of the fundamental freedom to speech and expression. At best, what we have today, after continuous press coverage over 10 days, are two statements, first a blogpost by Twitter and then, a press release by the Ministry of Electronics and Information Technology. These public statements by themselves, while welcome, serve limited utility. They cannot replace the legal orders which are necessary and constitute their basis.
Without the disclosure of the actual text of the legal orders, or public examination of reasons, the owners of these accounts and the larger public are left with incomplete information. This is an anti-democratic practice that results in an unchecked growth of irrational censorship but also leads to speculation that fractures trust. For instance, one would venture a query about the specific reasons why certain accounts rather than individual tweets have been sought to be blocked. Or, if the reasons for the blocking would be the same for a vast category of tweets that may have been made with changes in phrasing that could alter their meaning. Tragically, we have little public knowledge, which impedes scrutiny on constitutional doctrines of reasonableness and proportionality.
This has been the outcome of the failure of firstly, the Union executive, which framed the process for blocking websites in 2009, and included the secrecy provision, and then the Supreme Court, which failed to substantively examine it. This is despite the opportunity offered by its celebrated judgment (Shreya Singhal v. Union of India), when it struck down Section 66A of the IT Act as unconstitutional. At the same time, the court stated in Shreya Singhal, that an aggrieved party could approach a court for remedy if their website or user account was blocked under Section 69A. This would rarely happen due to the difficulty in accessing legal remedies, and almost becomes an impossibility when the direction for blocking is secret and never served on the user.
More recently, the court, when adjudicating the constitutional permissibility of the telecommunications shutdown in Jammu and Kashmir by its judgment in Anuradha Bhasin v. Union of India directed pro-active publication of all orders for internet shutdowns. After this, a decent argument may be made that directions for blocking now need to be made public. However, as we have recently discovered, several state governments are actively refusing compliance on publication of orders on internet shutdowns. This is even when RTI applications are made to them. In such a situation, the expectation of proactive publication of blocking directions seems overoptimistic.
The other glaring deficiency is the complete absence of any prior show-cause notice to the actual users of these accounts by the government, or permitting them an opportunity to present their defence. This is contrary to the principles of natural justice and has placed Twitter in the position of being an intermediary, which also serves as the derivative body to defend claims on behalf of its users. While blocking directions may be made to intermediaries, there has been little explanation on any such compliance with the principles of natural justice for the users who are being sought to be censored. This again goes back to the vagueness and the design faults in the process of how directions under Section 69A are issued.
Today, the accounts which were sought to be censored are back online. A lot of this emerges from Twitter’s evident refusal to comply with the directions after a constitutional appraisal. It has, as per press statements, cited the doctrine of proportionality in its defence. This is less than an ideal situation in which an unconstitutional law is being applied to its maximum threshold, with high arbitrariness, and its compliance is being resisted by a large, foreign, social media entity. To sum, it leaves a sense of confusion and wonder about why our own government formed under the Constitution may be failing to fulfil its obligations when strangers who trade in our data for profit are seemingly more eager.
This article first appeared in the print edition on February 12, 2021 under the title “Shutting down digital square”. The writer is executive director, Internet Freedom Foundation.
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