By Anand Desai

The recent controversy raised by India’s Communications and IT Minister Kapil Sibal's move to regulate online content on the internet raises interesting social, legal and technology issues. A fundamental question is that of a national government’s role in monitoring and controlling the freedom of expression of a human being, wherever he or she may be situated.

The United Nations Universal Declaration of Human Rights, adopted in 1948, provides that:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

However, Governments can exercise restrictions based on national sovereignty principles.

Article 19(1)(a) of the Constitution of India provides that all citizens shall have the right to freedom of speech and expression. Article 19(2) says nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

India has laws for punishing acts such as defamation, abuse, decency, morality and inciting hatred. India’s laws develop through statutes passed by Parliament and decisions of Indian Courts, which often take into account judicial views of other jurisdictions.

India has had a history of censorship on mass communication media, such as feature films.[1]

The advancement of technology has broken down geographical barriers for communication. The Internet has had an unimaginable impact on near instant communication by electronic mail, instant messaging, Voice over Internet Protocol (VoIP) "phone calls", two-way interactive video calls, and the World Wide Web with its discussion forums, blogs, social networking, and online shopping sites. Increasing amounts of data are transmitted at higher and higher speeds. It is estimated that in 1993 the Internet carried only 1% of the information flowing through two-way telecommunication, by 2000 this figure had grown to 51%, and by 2007 more than 97% of all telecommunicated information was carried over the Internet.[2]

Diverse political systems exist, and countries like China continue to exercise great control over their citizens, on the principle the Government knows best as to how its citizens should live. Internet censorship in China is among the most stringent in the world. The government blocks websites that discuss the Dalai Lama, the 1989 crackdown on Tiananmen Square protesters, Falun Gong, the banned spiritual movement, and other Internet sites. As revolts began to ricochet through the Middle East and North Africa in 2011, and homegrown efforts to organize protests began to circulate on the Internet, the Chinese government tightened its grip on electronic communications, and appeared to be more determined than ever to police cellphone calls, electronic messages, e-mail and access to the Internet in order to smother any hint of anti-government sentiment.^[3]

In 2003 the Government of India established the Indian Computer Emergency Response Team (CERT-IN) to ensure Internet security. Its stated mission is "to enhance the security of India's Communications and Information Infrastructure through proactive action and effective collaboration". CERT-IN is the agency that accepts and reviews requests to block access to specific websites. All licensed Indian ISPs must comply with CERT-IN decisions. There is no review or appeals process. Many institutions, including the Ministry of Home Affairs, courts, the intelligence services, the police and the National Human Rights Commission, may call on it for specialist expertise. By stretching the prohibition against publishing obscene content to include the filtering of Web sites, CERT-IN was empowered to review complaints and act as the sole authority for issuing blocking instructions to the Department of Telecommunications (DOT).

Following the November 2008 terrorist attacks in Mumbai, which killed 171 people, the Indian Parliament passed amendments to the Information Technology Act, 2000, that expanded the Government’s censorship and monitoring capabilities. Google has received Indian government requests for removal of 358 items from its services, including YouTube and Orkut, during the January-June period, according to a report by the internet search giant. As many as 255 item removal requests cited the government criticism as the reason, said the Google Transparency Report. Other reasons include defamation (39 requests), privacy and security (20 requests), impersonation (14 requests), hate speech (8 requests), pornography (3 requests) and national security (1 request).[4]

In the case of Secretary, Ministry of Information and Broadcasting, Govt. of India and others  vs. Cricket Association of Bengal and others [(1995) 2 SCC 161] the Supreme Court of India held -

“For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues toughing them. This cannot be provided by a medium controlled by a monopoly - whether the monopoly is of the State or any other individual, group or organisation".

Thus, India’s Constitution protects freedom of speech and expression in a balanced manner.  The Supreme Court has upheld pre-censorship of mass media, but has also warned that to “stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship”. Indian law provides for punishment for actions which are contrary to Indian law. Technology today allows control by Government over ISPs distributing the internet access within a jurisdiction. It allows blocking of select websites, but not part of the content within a website. However, the same information can be viewed in other jurisdictions, and can be disseminated by electronic mail to persons within a jurisdiction where the content is otherwise prohibited. Once someone tweets, this tweet does not remain on Twitter only and is mirrored all over the world by others using the Internet. Removing all these references to copies of the offending content is next to impossible. For example if a newspaper publishes an article written on the basis of a tweet, then does the article referencing the tweet also get deleted? What we call pornography in India may be considered permissible in another country. Laws all over the world are different, and hence, for example, a Facebook wall post may be breaking the law in one country, and not in another.

Also, the internet is the easiest place in the world to hide oneself. the email id abc@hotmail.com and abc@gmail.com may not owned by the same person called abc. There are scores of tools available all over the world which allow you to hide your tracks. So if the Government wants to bring down content on a website, it would first have to find out who the owner of that website is. That is a question that itself may be almost impossible to answer.

A fine balance will need to be struck between censorship and freedom of expression in this age of fast-changing technology. But the larger issue must be addressed – who decides what is best in a “free” country”, and to what extent is Government’s role to increase “control” as against bringing about a conducive social environment.   

Anand Desai is Managing Partner at DSK Legal

[1] In K.A. Abbas Vs. The Union of India (UOI) and Anr. [(1970) 2 SCC 780] the Supreme Court of India held -

“42. With this preliminary discussion we say that censorship in India (and pre censorships is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. ….We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.”

[2] "The World’s Technological Capacity to Store, Communicate, and Compute Information", Martin Hilbert and Priscila López (April 2011), Science, 332(6025), 60-65.

[3] The New York Times, December 7, 2011

[4] The Times of India, December 7, 2011

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