In an unprecedented move, the Indian government has been directed to share the order based on which it has blocked the website dowrycalculator.com in the country. The Ministry of Electronics and Information Technology (MeitY) has to share a redacted version of the order with the creator of the website, as per the Delhi High Court’s order on May 11.
The order must be redacted to remove information related to ‘third parties’ (but the Court did not elaborate on which third parties). It also directed that the website’s creator be given a hearing by the committee constituted under the Information Technology (Procedure and safeguards for blocking of access of information by public) Rules, 2009, wherein possible corrective measures for the website could be suggested.
The next hearing is scheduled on May 23. Neither the Court order nor a blog post by the the Internet Freedom Foundation which provided legal assistance in the case, mention any other observation made by the Court while passing the order.
Notably, blocking orders issued by MeitY under Section 69A of the IT Act, 2000 have been kept strictly confidential.
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What is the case of 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 characteristics of the groom. Quips like ‘Pitch Black (Not visible on a Moonless night)’ and ‘Wheatish (Almost white. Would need some fair n lovely)’ were present on the site when describing the skin colour of the groom, according to Thakur’s petition. The site also had a dedication to “all the match-making aunties of India.”
In 2018, politician Jyotiraditya Scindia asked then-Union Minister of Women and Child Development Maneka Gandhi to take action against the site. Gandhi wrote to then-IT Minister Ravi Shankar Prasad asking to have the site blocked as its “content is illegal and portrays country in poor light.” Around September 2018, a message saying “Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India. Please contact administrator for more information” began showing up on the site, according to the petition.
In 2019, Thakur filed an RTI application seeking details and was told that the site was blocked under Section 69A. “The committee (committee set up under Blocking Rules, 2009) examined the content and in the interest of preventing incitement to the commission of any cognisable relating to public order recommended blocking of URL,” read the RTI response as cited in the petition. In December that year, Thakur filed a writ petition in the Delhi High Court alleging violation of his fundamental rights of freedom of speech and expression.
Quash order, declare Rule 16 unconstitutional: Thakur’s petition
In his writ petition, Thakur asked for the following:
- Quash the Section 69A order issued against Dowrycalculator.com
- Restore access to the website
- Declare Rule 16 of the blocking rules as unconstitutional
- Guidelines should be issued for blocking orders under Section 69A
Allegations in the petition were made on the following grounds:
Blocking impacts right to free speech: “The contents of the dowry calculator are a manifestation of the petitioners invaluable fundamental freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution of India. The actions of the respondents (MeitY, Department of Telecommunications, and Ministry of Women and Child Development) in blocking the website violated this valuable right,” the petition argued. The blocking order does not fall under any of the ‘reasonable restrictions’ laid out in the Constitution, it added. Under Article 19, restrictions to free speech and expression can be in the interests:
- The sovereignty and integrity of India
- The security of the State
- Friendly relations with foreign States
- Public order
- Decency or morality
- In relation to contempt of court, defamation or incitement
The petition also invoked precedents in Supreme Court judgements:
i) The Supreme Court has repeatedly held that restrictions on free speech have to be narrow and such that they do not swallow the rights itself.
ii) It has also held that restrictions on right to free speech and expression “must be justified on the anvil of necessity and not the quicksand of convenience and expediency”.
Not providing a hearing violates SC ruling: “The constitutional validity of such statutory powers (Under Section 69A) was upheld by the Hon’ble supreme court in Shreya Singhal v Union of India primarily on the strength of how the blocking rules provided a detailed procedure which afforded a right of hearing to aggrieved persons and thus ensured that any restrictions of the right under Article 19 (1) (a) always fell squarely within the folds of Article (19) (2),” the petition argued.
It also invoked the Supreme Court’s statements in the Puttaswamy judgement:
“A constitutional democracy can survive when the citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights.”
Thus, the petition said, the government’s justification for blocking Thakur’s site has no basis and deprives him of his rights.
Hurting India’s image, preventing offence are invalid grounds: As per the law, blocking orders can be passed to prevent incitement to commit cognizable offences, and if related to safeguarding the security of the state, public order, etc. The petition argued that the ministry has not demonstrated how blocking the website could prevent incitement to committing an offence. The Minister of WCD asking for the site to be blocked because it hurt ‘India’s image’ does not create grounds for blocking of the site under grounds of ‘public order’ as defined by the Supreme Court, the petition said.
Clarify what suddenly changed after seven years: “This action on the part of the Respondénts demonstrates their clear mala fide and bias in”belatedly “ban [ning]” the Petitioner’s website by blocking it,” the petition argued regarding the lack of justification being given on why the site was blocked in 2018 despite being active for seven years and not linked with any public order issues.
The tumultuous history with Section 69A
Under Section 69A, a Designated Officer of Ministry of Electronics and Information Technology (MeitY) can ask a government agency, intermediary (like for example Twitter, Google, etc) to block any information online by passing an order with the reasons in writing.
The Blocking Rules, 2009 which lay down the procedure and safeguards for such blocking, make a provision for a committee to be constituted comprising the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team. This committee has to ascertain whether the order is in line with the law. The rules also say that proceedings of the committee will also identify the creator of that information, and issue a notice to them with a date by which they can file their replies or clarifications.
Citing the powers under this section, MeitY refused to disclose the details of their orders to censor certain Twitter handles and tweets in India, in a letter to IFF last year. However, IFF said that the ministry’s interpretation was incorrect as Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, only provides confidentiality for complaints.
Despite this, the section is increasingly being invoked as disclosures in the Lok Sabha have shown that thousands of URLs get blocked by the government every year.
“1,385, 2,799, 3,635, 9,849, 6,096 and 1,096 URLs were blocked during the years 2017, 2018, 2019, 2020, 2021 and 2022 (till 7th March, 2022).” — MeitY in reported disclosures to the Parliamentary Standing Committee on Information Technology
Twitter’s trouble with Section 69A
Last year, Twitter and MeitY were at loggerheads over the former’s non-compliance 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 reverses the suspension of all these accounts. TIME magazine reported that these accounts were targetted because of tweets posted on farmer protests that were being held at the time.
- MEITY sends an 18-page notice to Twitter over non-compliance with its orders.
- On February 4, MEITY sends another takedown order with a list of 1,178 accounts to be blocked
- Twitter blocks 500 accounts but refuses to block others, citing ‘free expression’
- On February 10, MeitY holds a meeting with Twitter VP for Global Public Policy Monique Meche and Legal VP and Deputy General Counsel Jim Baker, both US-based executives. In this meeting, MeitY urges Twitter to follow Indian laws (and by extension, comply with takedown requests).
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