BBC Documentary: Are 'Emergency Powers' Under IT Rules Constitutionally Valid?

The BBC documentary casts a critical glare at PM Modi, who was the CM of Gujarat in 2002.

(Image courtesy: The Quint)

It has already been (well) over 48 hours since the Ministry of Information and Broadcasting (I&B Ministry) first exercised its emergency censorship powers under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and directed Youtube and Twitter to remove links to BBC’s Gujarat Riots documentary.

What this means is that the Authorised Officer — who first requested the ban — should have by now, brought the request before an Inter-Departmental Committee (comprising members from various union ministries).

The Secretary, Ministry of Information and Broadcasting, is expected to now take recommendation of the committee and pass its final order regarding the approval of the request.

Obviously, if the Secretary does not approve the request, the ban will be revoked and documentary unblocked from public access. But that hasn’t happened so far.

The documentary, incidentally, casts a critical glare at Prime Minister Narendra Modi, who was the Chief Minister of Gujarat during the 2002 riots. Kanchan Gupta, senior advisor with the Ministry of Information and Broadcasting has described it, on Twitter, as “anti-India garbage, disguised as documentary”. Opposition leaders, on the other hand, have criticised the government’s attempts at censorship.

But first things first: Was the ministry’s ‘emergency’ ban valid? And what should be done now? 

Experts have repeatedly questioned the constitutional validity of Rule 16 which empowers the ministry to order “blocking of information in case of emergency” — without giving the intermediary an opportunity of a hearing.

According to Delhi High Court Advocate Harshit Anand, this results in: 

• A violation of the principle of audi alteram partem (listen to the other side)

• A chilling effect on other journalists and media organisations, and thereby a repression of freedom of expression

• Unguided administrative discretion

Principle of Audi Altarem Partem

Neglecting the principle of Audi Altarem Partem, which simply means listen to the other side or hear both sides, is a violation of principles of natural justice and Article 14 of the Constitution, Anand points out.

Article 14 mandates equality before law. If this is ignored, it also results in arbitrariness in the directions issued, and a travesty of justice. This is because the party most affected by the direction, doesn’t even get an opportunity to be heard.

‘Chilling Effect’

Expert suggests that blocking orders can also have a chilling effect on other journalists and media organisation that may be critical of the ruling dispensation.

This can, in turn, hinder press freedom and endanger freedom of expression, which is a fundamental right, enshrined in Article 19 of the Constitution of India.

Besides as pointed out by Advocate Prasanna S:

“There is nothing that the government has put out so far to suggest that it is the government of India that is being imputed with any malice or anything critical in the documentary …The documentary seems to be merely about certain people, not about the entirety of the government of India. Merely because the present Prime Minister as a personality is criticised, it does not automatically mean that the government of India is being criticised. Therefore, the government of India invoking its ‘emergency powers’ is also an excess.”

Unguided Administrative Discretion

“Under administrative law, whenever you are giving any authority under the law, the power to do anything which will have a bearing on fundamental rights or any right under the statute, you have to provide strict guidelines, or safeguards.”

Advocate Harshit Anand

This, Anand recalled, was emphasised by the apex court in Hamdard Dawakhana (Wakf) Lal vs Union of India (1959).

Further, the judgment in People's Union for Civil Liberties (PUCL) v. Union of India (1996), which dealt with the Telegraph Act, also mandates certain safeguards against arbitrariness.

“Both procedural and substantive safeguards,” Anand said. He added that while Rule 16 does account for substantive safeguards by suggesting that a blocking request ought to be on grounds specified under Section 69A (1) of IT act (which include sovereignty and integrity of India, public order etc), the procedural safeguards seem missing.

“The biggest procedural safeguard that is missing is the right of the intermediary or the content creator to be heard before such directions are passed and the information is blocked,” Anand told The Quint. 

And what about access to the order?

Then, there is also the question of access to the order passed by the Secretary, I&B Ministry. 

Pointing out that an “emergency” is not perpetual, the Internet Freedom Foundation tweeted:

“Citizens must be given an opportunity to challenge such orders but cannot do so if the orders are not made publicly available.”

But have such orders been made public in the past?

Not always.

The Commonwealth Human Rights Initiative (CHRI) recently shared that they had filed an RTI application seeking pertinent information about the directions issued, between 25 February 2021 and 14 December 2022, under Rule 16.

The Central Public Information Officer (CPIO) of the Ministry of Information and Broadcast, however, denied information about the orders issued by Authorised Officers. 

They also rejected access to copies of records relating to the proceedings of the Inter-Departmental Committee and the Review Committee stating that they were 'confidential' and exempted from disclosure under Section 8(1)(a) of the RTI Act.

This even though Section 8(1)(a) allows them to curb access to information only if the disclosure would “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence."

As per CHRI:

“The CPIO has not invoked any of these grounds to reject the RTI application. The only reason given for refusing access is that they are 'confidential' information. (sic)”

Meanwhile…

RTI response by Parliament Secretariats have, according to CHRI, revealed that the Union Government has not (since publication in 2021) tabled the 2021 Rules before the two houses.

This is despite the fact that Section 87 of the IT Act mandates that every rule made by the Central Government shall be tabled as soon as possible before the Parliament.

So what now for the BBC documentary?

Questioning the lack of legal challenge to the the ministry’s mandate on the intermediaries, Prasanna S said:

“The foreign corporations with deep pockets, who are intermediaries, should ideally be able to stand up to these undemocratic practices and challenge some of these directions in the court — and not let the users bear the brunt.”

Meanwhile, Internet Freedom Foundation (IFF) has urged the Authorised Officer to comply with the condition under Rule 16(3) and make sure the ban request is placed before a Review Committee. They have also called upon the Review Committee to make its findings public.