On July 31, 2015, the Department of Telecommunications instructed internet service providers to block a list of 857 websites, most of them pornographic. The instruction was ostensibly the outcome of a Supreme Court order on a PIL petition against pornography. The negative public reaction to the ban was unsurprising; not only did the ban have huge implications for fundamental rights, Indians rank among the top 5 countries for viewership of porn (according to the statistics of banned website Pornhub).
The ban is patently invalid as it runs afoul of the Supreme Court’s judgment in Shreya Singhal v. Union of India. In that judgment, the Court struck down Section 66A of the Information Technology Act, 2000 (the IT Act) but also upheld the constitutionality of Sections 69A and 79, which provide the procedure for blocking websites under the Act.
The story begins with the petition filed by Kamlesh Vaswani, which is filled with claims of the nexus between pornography and violence that can, at best, be described as factually tenuous. On July 8, Vaswani’s lawyer asked the Court to pass an interim order blocking all websites until the Ministry of Home Affairs took a stand. The Court refused, stating that such a ban would be a violation of the right to personal liberty under Article 21 of the Constitution. It adjourned the matter to August 10 but before doing so, chastised the government for failing to block child pornography websites.
The government then took this chastisement and ran wild . Interpreting it as an order (despite the fact that the actual order only contained an adjournment) the Department of Telecommunications (DoT) used Section 79(3)(b) of the IT Act to instruct Internet Service Providers (ISPs) to block a list of websites. After it was pointed out that this was in direct contravention of the opinion of the Court whose ‘order’ it sought to implement, the government retracted its provision somewhat. It now claims that the ban is “temporary” and justifies it on the ground that it blocks child pornography (or prevents children from accessing pornography — reports are conflicting) even though there is little reason to believe this is the case.
Limited application
So how does the ban fall afoul of the Shreya Singhal judgment? Amongst other things, the judgment limited the application of Section 79, which enabled intermediaries to block websites at their own discretion, by tying it to Section 69A, which contains the procedure for the government to block websites. It stated that intermediaries or ISPs could only block websites if they received “actual knowledge” of a court order or received a notification under Section 69A. This notification must, in turn, follow the procedure established by the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (the IT Rules), which require that all reasonable efforts be made to find the person hosting the information.
It is highly improbable that the government made such efforts for each of the 857 websites. Given that the government neither received an explicit order nor followed the established procedure, the ban thus fails on procedural grounds.
The ban fails on substantive grounds as well. The instruction issued by the DoT justified the block on the grounds that the websites “relate to morality, decency as given in Article 19(2) of the Constitution.” However, it is well established that Article 19(2) is not a law in and of itself — it merely lists the reasons which legislatures can cite to pass a law restricting the fundamental freedoms granted under Article 19(1). Section 69A of the IT Act (which Shreya Singhal ties Section 79 to) lists many of the reasons included in Article 19(2) but “morality” and “decency” are not some of them.
However, the validity of the ban is not the most pressing issue at hand. The government is already retracting its position on the matter and the Supreme Court is likely to weigh in on the issue again when the PIL petition is next heard. The most worrying issue is that the safeguards to prevent the abuse of Sections 69A and 79, that the Supreme Court declared sufficient in Shreya Singhal, have so obviously failed. It is only because of the popularity of porn that the issue has received national attention; what would happen if it affected the rights of a smaller and less vocal segment of society?
This question returns to the Shreya Singhal judgment or, more specifically, one if its drawbacks. Rule 16 of the IT Rules declares that instructions such as the letter sent by the DoT must actually be kept confidential.
The constitutionality of Rule 16 was questioned in Shreya Singhal but the Court only acknowledges it and fails to declare its position either way. Given that the established procedure only requires that “reasonable efforts” be made to contact the host of the website, who could often be outside Indian jurisdiction, Rule 16 directly affects the right of Indians to access information and should be struck down. At the very least, messages on blocked websites should contain the exact information of the court order or government notification so that they can be scrutinised by the public, Else question marks will always remain over each blocked website. After all, one of the fundamental principles of natural justice is that “justice must not only be done, but must be seen to be done”.
(Madhav Chandavarkar is a research associate at Takshashila Institution, an independent, non-partisan think tank and school of public policy)
