In an unprecedented move, the information and broadcasting ministry used its emergency powers under Rule 16(3) of the IT Rules, 2021, and directed Twitter to take down tweets that linked to the controversial BBC documentary ‘India: The Modi Question’ soon after it was aired in the UK last month. While the I&B ministry’s actions have received justified criticism, Twitter’s immediate and unquestioning compliance with the directions has gone somewhat unnoticed.
Twitter’s promise to its users on how they respond to government’s blocking orders reads thus:
“In our continuing effort to make our services available to people everywhere, if we receive a valid and properly scoped request from an authorised entity, it may be necessary to withhold access to certain content in a particular country from time to time.”
Implicit in this promise is that Twitter will make a studied determination on whether a request was (a) valid, (b) properly scoped and (c) whether such a request originated from an authorised entity. Another legitimate expectation that flows from this promise is that Twitter would take independent counsel on the legal (and indeed constitutional) validity of a request from the government before acting on it. In this case, it is unclear whether Twitter has made that such a determination on validity and how – particularly when the ministry’s directions suffer from several legal infirmities, even on the face of it.
First, the directions indicate they are issued under Section 69A of the IT Act and the Rule 16 of the IT Rules 2021. Rule 16 allows an authorised officer of the I&B ministry to issue blocking orders to intermediaries such as Twitter “in the interest of sovereignty and integrity of India; defence 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” if it deemed it “necessary or expedient” to do so. These grounds are mentioned in Section 69A and are incorporated by reference in Rule 16.
A pertinent point here is that the directions under Rule 16 can be given by an authorised officer of the I&B ministry, as opposed to directions under Section 69A and the Blocking Rules of 2009, which come under the purview of the MeiTY and can be issued only by the designated officer under the 2009 Rules. It is only noncompliance with the latter that may result in a criminal liability on the intermediary under Section 69A(3) of the Act.
Second, the blocking order does not indicate on what ground the emergency powers have been invoked. It is impossible for Twitter or any intermediary to make that determination or seek counsel as to the validity of the order if the order does not exactly specify which of the 69A grounds is being engaged. Without this, an intermediary cannot really test and arbitrate on whether the demand to block the content in question is reasonable, proportionate and/or whether it fits the judicially drawn contours for each of these categories.
Moreover, although the text of the Rules provide for blocking orders for reasons of ‘expediency’, there are several judicial pronouncements beginning from Rangarajan v. Jagjivan Ram that have held necessity alone to be a ground of restricting fundamental rights and not on the ‘quicksand of expediency’. It is all the more impossible for Twitter to make a determination of whether taking down the tweets was ‘necessary in the interests of _____’, if that blank has not been appositely filled up by the government.
Third, one might expect Twitter to have been even more circumspect in scrutinising a blocking order that specifically relate to the ruling party, where a reasonable intermediary would have assumed overzealousness on the part of a government if it is committed to free speech, a right guaranteed and protected under the Constitution, the supreme law of the land in which such intermediary is allowed to operate. There is no gainsaying that social media platforms have become a vital means by which people exercise their constitutionally protected right of political speech.
In such situations, it is essential that social media platforms push back against these unlawful blocking orders and uphold their commitment to freedom of expression. This is not only a moral imperative but also a legal obligation – under the constitution, under international human rights law, and consistent with the UNHRC-endorsed Guiding Principles on Business and Human Rights.
This author has in the past commended Twitter when it resisted the government’s request to block several accounts supporting the anti-farm law agitation. It is now surprising that in this case, it has completely suspended discretion and good judgment, and demonstrated servile deference to an order that is quite palpably unlawful.
This line of reasoning is likely provoke a familiar and insecurely nationalistic reaction that it exhorts a foreign corporation to wilfully disobey orders of the Indian government. The answer to that is rather simple. The seat of India’s sovereignty is not in the government, but is in the Constitution, and the laws made under the Constitution and the constitutional reason that animates and permeates them. Shouldn’t a reasonable nationalist rather have a foreign corporation disobey Indian government orders and obey Indian law rather than the other way round?
Prasanna S. is an Advocate on Record in the Supreme Court.
Edited by Jahnavi Sen.