Delhi High Court at Ministry of Informatics
In an unprecedented move, the Indian government has been instructed to share the order based on which it blocked the dowrycalculator.com website in the country. The Ministry of Electronics and Information Technology (MeitY) is to share a redacted version of the order with the website creator, as per the order of the Delhi High Court on May 11.
The order should be redacted to remove information about “third parties” (but the Court did not specify which third parties). He also ordered that the creator of the website be heard by the panel constituted under the Information Technology (Procedure and Safeguards for Blocking Public Access to Information) Rules 2009, at the during which possible corrective measures for the website could be suggested.
The next hearing is scheduled for May 23. Neither the court order nor a blog post by the Internet Freedom Foundation which provided legal assistance in the case, mention any other observations made by the Court when making the order.
Notably, blocking orders issued by MeitY under Section 69A of the Computers Act 2000 have been kept strictly confidential.
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What about Dowrycalculator.com?
In 2011, a satirical website called dowrycalculator.com was created by (then) student (now film critic) Tanul Thakur which offered to calculate dowries based on the characteristics of the groom. Jokes like “Pitch Black (not visible on a moonless night)” and “Wheatish (Almost white. Could use a little beauty)” were present on the site to describe the skin color of the groom, according to the petition. of Thakur. The site also had a dedication to “all India’s matchmaking aunts”.
In 2018, politician Jyotiraditya Scindia called on Maneka Gandhi, then Union Minister for Women and Child Development, to take action against the site. Gandhi wrote to the then IT Minister, Ravi Shankar Prasad, asking that the site be blocked because its “content is illegal and paints the country in a bad light”. Around September 2018, a message saying “Your requested URL has been blocked in accordance with instructions received from the Department of Telecommunications, Government of India. Please contact the administrator for further information” began appearing on the site, according to the petition.
In 2019, Thakur filed an RTI request asking for details and was told the site was blocked under Section 69A. “The Committee (Committee established under the Blocking Rules, 2009) reviewed the content and, in the interest of preventing the incitement to commission of any public order material, recommended the blocking of the ‘URL,” reads RTI’s response cited in the petition. In December of this year, Thakur filed a written petition in the Delhi High Court alleging violation of his fundamental rights to freedom of speech and expression.
Cancel the order, declare Article 16 unconstitutional: Thakur’s request
In his written petition, Thakur requested the following:
- Cancel Section 69A Order Issued Against Dowrycalculator.com
- Restore website access
- Declare Rule 16 of the Blocking Rules as unconstitutional
- Guidelines Should Be Issued For Restraint Orders Under Section 69A
The allegations contained in the petition were made on the following grounds:
The blocking impacts the right to freedom of expression: “The content of the dowry calculator is a manifestation of the petitioners’ invaluable fundamental freedom of speech and expression guaranteed by Section 19(1)(a) of the Constitution of India. The actions of the defendants (MeitY, Department of Telecommunications and Ministry of Women and Child Development) by blocking the website violated this precious right,” the petition argued. The blocking order does not fall within any of the “reasonable restraints” set out in the Constitution, he added. Under Article 19, restrictions on freedom of speech and expression may be in the interest of:
- India’s sovereignty and integrity
- State security
- Friendly relations with foreign states
- Public order
- Decency or morality
- With respect to contempt of court, defamation or incitement
The motion also invoked precedents in Supreme Court judgments:
i) The Supreme Court has repeatedly stated that restrictions on freedom of expression must be narrow and such that they do not swallow up the rights themselves.
ii) It also ruled that restrictions on the right to freedom of speech and expression “must be justified on the anvil of necessity and not on the quicksand of convenience and expediency”.
Failure to hold a hearing violates the SC decision: “The constitutional validity of these statutory powers (under Section 69A) was upheld by the Honorable Supreme Court in Shreya Singhal v. Union of India mainly on the basis of how the blocking rules provided for a procedure which granted a right of hearing to aggrieved persons and thus ensured that any restriction of the right under Article 19(1)(a) still fell fully within Article (19)(2),” said supported the petition.
She also cited the Supreme Court’s statements in Puttaswamy:
“A constitutional democracy can survive when citizens have undiluted assurance that the rule of law will protect their rights and freedoms against any invasion by the state and that judicial remedies will be available to ask probing questions and await answers when a citizen has been deprived of these most precious rights.
Thus, according to the petition, the government’s justification for blocking Thakur’s site has no basis and disenfranchises him.
Hurting India’s image, preventing the offense are not valid grounds: In accordance with the law, restraining orders may be issued to prevent incitement to commit recognized offences, and if related to safeguarding state security, public order, etc. The petition argued that the department failed to demonstrate how blocking the website could prevent incitement to commit an offence. WCD minister asking for site to be blocked because it harms ‘India’s image’ does not create grounds for blocking site on ‘public order’ grounds as defined by Supreme Court , the petition states.
Clarify what suddenly changed after seven years: “This action on the part of the respondents demonstrates their clear disbelief and bias in the ‘late’ ban [ning]”The petitioner’s website by blocking it,” the petition argued regarding the lack of justification given as to why the site was blocked in 2018 despite having been active for seven years and not linked to no public order problem.
The tumultuous history with Article 69A
Under Section 69Aa designated officer of the Ministry of Electronics and Information Technology (MeitY) may request a government agency, intermediary (such as for example Twitter, Google, etc.) to block any online information by placing an order with the reasons in writing.
The Blocking Rules, 2009 which lay down the procedure and the guarantees for such blocking, provide for the constitution of a committee composed of the official designated as president and representatives, with the rank of co-secretary within the ministries of law and justice, of Interior, Information and Broadcasting and the Indian Computer Emergency Response Team. This committee must check whether the ordinance complies with the law. The rules also state that the committee’s deliberations will also identify the originator of such information and send them a notice indicating a date when they can file their responses or clarifications.
Citing powers under this section, MeitY declined to disclose details of their orders to censor certain Twitter handles and tweets in India, in a letter to IFF last year. However, the IFF said the department’s interpretation was incorrect because Rule 16 of the Information Technology Rules 2009 (Procedure and Safeguards for Blocking Public Access to Information) does not provides for the confidentiality of complaints.
Despite this, the section is increasingly invoked as disclosures in the Lok Sabha have shown that thousands of URLs are blocked by the government each year.
“1,385, 2,799, 3,635, 9,849, 6,096, and 1,096 URLs were blocked in the years 2017, 2018, 2019, 2020, 2021, and 2022 (until March 7, 2022).” — MeitY in reported disclosures to the Parliamentary Standing Committee on Information Technology
Twitter’s problem with Section 69A
Last year, Twitter and MeitY disagreed over the former’s failure to comply with Section 69A orders to suspend the accounts of The Caravan, Kisan Ekta Morcha and Prasar Bharti CEO Shashi Shekhar. Here’s what happened next:
- On February 2, Twitter unsuspended all of these accounts. Time magazine reported that these accounts were being targeted due to tweets posted about the farmer protests that were happening at the time.
- MEITY sends an 18-page notice to Twitter for non-compliance with its orders.
- On February 4, MEITY sends another withdrawal order with a list of 1,178 accounts to be blocked
- Twitter blocks 500 accounts but refuses to block others, citing ‘freedom of expression’
- On February 10, MeitY holds a meeting with Twitter’s vice president for global public policy, Monique Meche, and vice president of legal and assistant general counsel, Jim Baker, both US-based executives. At this meeting, MeitY urges Twitter to follow Indian laws (and by extension, comply with takedown requests).
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