INTRODUCTION
Section 69A of the Information Technology Act 2000 empowers the Central government or any of its officers may direct any agency of the government or intermediary to block access for public or cause to be blocked for access by the public any information generated, received, stored, transmitted or hosted in any computer resource. The conditions under which the Central Govt can direct the blocking of access of information to the public in the interests of the following – Sovereignty and Integrity of India, security of the state, Defense of India, friendly relations with foreign states, prevention of commission of any cognizable offense. Under Section 69A(2), the procedure and safeguards subject to which the blocking of access to any information would be prescribed. The punishment for not complying with the directions of the Central Government is imprisonment for a term which may extend to a period of seven years and fine as well. Section 69A was added as part of the Amendment to the IT Act in 2008.
BLOCKING RULES 2009
The procedure and safeguards have been provided under the Information Technology (Procedure and Safeguards for Blocking of Access to Information) Rules, 2009. Rule 8 states that the government must make all reasonable efforts to identify the person or the intermediary that hosted the information and a notice must be issued to them asking them to explain as to why their content should not be blocked. The person behind the information or the intermediary will have to respond within a period of 48 hours of the notice. Based on the response provided, the government can decide whether to block the content or not. However, Rule 9 provides that in emergency situations, Government can pass an order blocking access to information without affording an opportunity of hearing to the other party. A review committee may be constituted for post facto hearing, determining whether the Government blocked the content the grounds mentioned under Section 69A. Rule 16 states that strict confidentiality is to be maintained with regard to all the complaints and requests received and actions taken thereof.
RULING IN SHREYA SINGHAL V. UNION OF INDIA
In this particular case, the Court declared Section 66A of the IT Act to be violative of the provisions of the Constitution. However, the Supreme Court upheld the validity of Section 69A of the Constitution. It was declared that blocking could only be resorted to situations of threat to national security, public order, interests of sovereignty and integrity of the country etc. These restrictions were same as provided under Article 19(2) of the Constitution. The restrictions of free speech and expression were constitutional in nature and the court observed that the Blocking Rules provided adequate safeguards against the restrictions on free speech by the Government, such as issuing a notice before passing orders. The constitutionality of blocking orders passed by the Government could challenged by the petitioners by filing a writ petition under Article 226 of the Constitution.
INSTANCES OF BLOCKING ORDERS UNDER SECTION 69A
Twitter Case
The Government had issued blocking orders to Twitter under Section 69A of the IT Act against nearly fifteen hundred Twitter accounts and more than a hundred tweets between February 2021 and January 2022. The Government had asked Twitter to either comply with the orders or consider losing its immunity under Section 79(1) and face penal consequences for the same. Twitter had to comply with the orders “under protest”. Later, Twitter filed a writ petition in the Karnataka High Court under Article 226 of the Constitution, seeking the quashing of blocking orders on the grounds of non-compliance with the procedure under Section 69A, lack of notice to the users etc. The writ jurisdiction of Twitter was challenged in this case as it was a foreign entity. However, the court held that Twitter had jurisdiction to invoke Article 226 as it was apprehensive of losing immunity under Section 79(1) of the IT Act and the jurisdiction of the courts under Article 226 extends to “any other purpose” apart from enforcement of fundamental rights. The Court upheld the validity of Section 69A and held that the blocking orders were not against the doctrine of proportionality. Reliance was made to Twitter’s own user agreement which allowed for the suspension of accounts under extreme circumstances. Section 69A hah also enabled the blocking of content in extreme circumstances under the limited number of grounds mentioned under Section 69A. The court also held that Section 69A r/w Blocking Rules 2009 allows for the blocking of entire accounts and not just individual tweets of the users. The blocking of accounts would act as a better deterrent as compared to blocking individual tweets. Further, the court opined that Rule 8(1) of the Blocking Rules allow the Government to either issue a notice to the intermediary or the user. It is not mandatory to issue a notice to the user if notice has already been served upon the intermediary. In this instance, notices were already served upon Twitter, thereby the issuance of notice upon the users was not mandatory. Keeping all these points into consideration, the reliefs sought by Twitter were denied by the court and it imposed a fine of fifty lakh rupees on Twitter for willful non-compliance with the orders issued by the Government.
Chinese Apps Ban
The Government of India had used Section 69A of the IT Act to block access to hundreds of Chinese apps in India , including popular apps like TikTok, PUBG Mobile, Shein, AliExpress,CamScanner. The apps were banned on the ground that they were prejudicial to sovereignty and integrity of India, defense of India and security of the state. Data privacy was also of the grounds though it is not expressly mentioned under Section 69A. The decision to block access to Chinese apps took shortly after the Galwan clash between Indian and Chinese soldiers.
Tanul Thakur (Dowry Calculator case)
The petitioner’s satirical website was blocked by the Government without issuing a notice to him as required by the rules. The Government justified the decision to not issue a notice or provide a blocking order under Rule 16 of the Blocking Rules, which refers to confidentiality to be maintained regarding complaints and requests. The Delhi High Court directed the Government to provide a copy of the blocking order to the plaintiff and provide an opportunity of post decisional hearing to the plaintiff. However, even after hearing the side of petitioner, the government refused to revoke the ban on the website. Later another writ petition was filed by the petitioner and the Delhi High Court directed the Government to remove the ban on the website if a disclaimer is put on the website within a period of six weeks.
CONCLUSION
Section 69A empowers the Central Government to block access to information on certain grounds. While it could be extremely useful in tackling the menace of fake news or propaganda, it could also be used to curb legitimate criticism of the government, which would be a violation of Article 19(1)(a) of the Constitution. The grounds provided under Section 69A are very broad and this could make it difficult to determine whether a particular set of information falls within the grounds. Rule 8 of the Blocking Rules does provide safeguards to the individuals with regard to the issuance of notice before blocking of the information but it clashes with Rule 16 which calls for confidentiality to be maintained with regard to complaints and requests.
Contributed By : Kritavirya Choudhary (Intern)