Back to the Basics: The Delhi High Court’s Bail Orders under the UAPA

[Update: At the time of writing, the Supreme Court has, in appeal, directed that the Delhi High Court’s order discussed below “not be treated as a precedent or relied on by the parties.” The effect of this is that while the grant of bail is not (yet) cancelled, the High Court’s judgment itself has been suspended out of existence.

While this phrase – “not to be treated as a precedent” – has become a standard feature in Indian jurisprudence, it is worth repeating – without mincing words – that this is entirely outside the law. When a constitutional court (and the High Courts are constitutional courts) delivers a reasoned judgment on an issue, the task of an appellate court is limited to determining whether that judgment correctly interpreted the law, or did so wrongly. Until reversed, the judgment of a court has the force of law. It is therefore not within the authority of the Supreme Court to act as if the judgment of another constitutional court simply does not exist, or was never delivered – and worse, to deliver an unreasoned command that all other courts also participate in this fiction.

It is also important to note the impact of this order: it means that while the three individuals will not be sent back to jail (until whatever time that the Supreme Court takes a final view on the correctness of the High Court’s judgment), what it does mean is that trial courts (and other benches of the High Court) are barred by fiat from expressly citing the Delhi High Court’s judgment where anyone else’s civil rights are concerned. The judgment itself, meanwhile, exists like a phantom limb – not really there, but still there somewhere. This is wholly destructive of the rule of law.]


On 15th June 2021, a two-judge bench of the Delhi High Court (Mridul and Bhambani JJ) passed three orders granting bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal in the cases relating to riots in Delhi in February 2020 [“the Delhi riots cases”]. Along with many others, the three had been accused of participating in a conspiracy to cause violence in the wake of the anti-CAA protests, charge-sheeted under the Unlawful Activities Prevention Act [“UAPA”], and – at the time of writing – had spent over one year in jail without trial. Bail applications before the trial court had been rejected.

The High Court’s orders are significant, as it is the first instance of regular bail – i.e., bail on merits – being granted to individuals who have been charge-sheeted under the UAPA in the Delhi riots cases. What is of even greater significance, however, is the Court’s reasoning. The bail orders reiterate a simple fact that has, over the years, been repeatedly obscured: that the exceptionally stringent provisions of the UAPA (which make the granting of bail extremely difficult) are meant to apply only to exceptional cases, and not as substitutes for ordinary penal law. This distinction between the state of exception and the state of normalcy has been blurred by laws such as the UAPA, whose broad and vaguely-worded provisions allow State agencies to invoke and apply them indiscriminately, and thus keep people behind bars for years without trial. The Court’s orders today go some way towards restoring that essential distinction (for a background, see these pieces by Abhinav Sekhri, here and here).

As another preliminary point, in order to understand the High Court’s bail orders, it is important to recall the Supreme Court judgment in the Watali case. As we know, Section 43(D)(5) of the UAPA bars the grant of bail if, on a perusal of the case diary, and in the opinion of the Court, there “are reasonable grounds for believing that the accusation against such person is prima facie true.” In essence, therefore, the UAPA limits the Court to looking at the prosecution version, and precludes bail if the prosecution’s version – without having passed through cross-examination or challenge – appears true on the face of it. In Watali, the Supreme Court further held that it was not permissible for even the Court to engage in a detailed analysis of the prosecution’s case while considering bail under the UAPA, and to consider whether the evidence presented by the prosecution appeared sufficient or not. Thus, while the UAPA ties one hand of the defence behind its back (by letting only one side’s version be determinative for the question of bail), the Watali judgment tied the other hand as well, by effectively prohibiting any substantive challenge to that version. The effect of this is to make the grant of bail almost impossible until the end of the trial (which could take years) – a wholly unconstitutional interpretation of the UAPA, to say the least.

Almost, however, is not entirely. Notwithstanding Watali, there remains space for Courts to engage with abusive prosecution cases, and (righty) grant bail nonetheless. One example of this is the pre-Watali Bombay High Court judgments in the Kabir Kala Manch cases, where the constitutional guarantees of free speech and freedom of association were invoked to read down the term “membership” (of an unlawful organisation) under the UAPA to “active membership”, i.e., to the incitement of violence. In those cases, the prosecution case – taken entirely on its own terms, and as presumptively true – did not claim that the accused had been fomenting violence (at the highest, they were accused of participating in some meetings, and some literature had been recovered from them). Consequently, even on its own terms, a “prima facie” case under the UAPA had not been made out, and consequently, Section 43(D)(5) did not apply.

Today’s Delhi High Court orders belong to the same judicial line of reasoning as the Kabir Kala Manch cases: i.e., extending a close scrutiny to the terms of the UAPA, and how a responsible judiciary, committed to the protection of fundamental rights, ought to interpret them. At the heart of the lead judgment/order [Asif Iqbal Tanha v State of NCT of Delhi] is the basic insight that the gravamen of offences under the UAPA is “terrorism”, and the word “terrorism” has to be given a specific meaning – in light of the context and history of the Act – that distinguishes it from offences that are dealt with under ordinary law (paragraphs 28 – 39). This is particularly important, as the Court notes – correctly – that a “sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed” (paragraph 40). Based on these interpretive principles – and prior Supreme Court precedent – the Court goes on to hold:

… the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. (para 49)

The Court buttresses this by noting that the UAPA is a central legislation, and therefore must fall within one of the fields of legislation that the centre is competent to legislate on, under Schedule VII. The appropriate head under List I of the Seventh Schedule – according to the Court – is the “defence of India” (as opposed to “public order”, which is a state subject) (paragraph 57). This – the Court observes – also demonstrates the exceptional nature of the UAPA: “it was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.” (para 57)

Coming to the question of application, the Court then notes that taking the Prosecution case (as set out in its 17000-page charge-sheet) as true, there were no specific accusations against the accused other than that he handed over a SIM card to a co-accused; there was no recovery of weapons or any accusation that the accused was leading the conspirators who actually engaged in violence. In response, the State repeatedly tried to argue that the anti-CAA protest was an “aggravated” protest that was likely to threaten the “foundations” of the nation. The Court’s response to this is striking in its simplicity: it once again notes that none of this is based on any factual assertion, but rather “based upon inferences drawn by the prosecuting agency.” The anti-CAA protest itself was at no point banned or outlawed – and just like Watali prohibits courts from delving into the “merits or demerits” of evidence at the state of bail, logically, so must it preclude taking into consideration “inferences and conclusions”, in the absence of “accusations made against the appellant [that] prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.” [para 58]

This reasoning is extremely important: a scrutiny of the Delhi Riots cases indicate that (i) the actual evidence against the accused is related to organising protests and chakka jam; (ii) violence occurred, but there is no evidence linking the accused to the violence; (iii) the gap in the middle is filled by the State alleging conspiracy and the “likelihood” of causing violence under the UAPA. It is this gap that the Court correctly identifies, and the notes that mere inferences are not sufficient to complete the chain of causation and establish a prima facie case under the UAPA, which could then be used to deny bail to the accused for years.

Having thus established that a prima facie case of terrorism under the UAPA has not been made out, the Court – correctly – considers the general principles regarding bail. Applying those general principles – and in view of the fact that the charge-sheet has 740 witnesses, with no prospect of the trial beginning any time soon (here the Court draws upon the Supreme Court judgment in Najeeb, which also held that S. 43(D)(5) is not inflexible, and does not override constitutional rights such as the right to a fair and speedy trial) – the Court holds that a case for bail has been made out.

The accompanying two orders – in Devangana Kalita and Natasha Narwal’s cases – are based on similar reasoning. In the Devangana Kalita order, the High Court makes the crucial observation that:

The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA. (para 47)

This is extremely important, because it goes back to the initial point of this blog post, which is the distinction between states of exception and states of normalcy. The High Court notes here that there are indeed occasions where initially peaceful protests can spill over into the zone of illegality; in such a case, however, whatever illegalities may have been committed are to be dealt with under ordinary law, because there still remains a gap between illegal protests and terrorism. To make out a case of terrorism under the UAPA, “individual, factual, and particularised” allegations are needed, and that gap cannot be filled – to repeat – by inferences and insinuations.

Similarly in the Natasha Narwal order, the Court observes:

Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. (para 35)

The Court buttresses this point by noting – in all three judgments – that the right to peaceful protest is a fundamental rights under the Constitution. Consequently, insofar as the allegations themselves pertain to the organisation of protests (regardless of the merits of the cause), they cannot be a ground for UAPA offences – including situations where protests – as indicated above – cross the line into illegality. In those situations, ordinary law may be used in response to acts of illegality, but not – in the absence of specific allegations – stringent anti-terror statutes such as the UAPA.

In sum, therefore, the following.- indisputable – principles emerge from the High Court’s three orders:

  1. The UAPA is a special statute, designed to deal with a state of exception, and its operation should not be blurred with ordinary legislation.
  2. Criminal statutes must always be narrowly construed, and their terms given due specificity.
  3. A combination of (1) and (2) implies that the word “terrorism” in the UAPA must be given specific meaning that relates to the defence of India, and is distinguishable from public order offences.
  4. In order to establish a prima facie case of terrorism under the UAPA against an accused, the allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.
  5. As long as that gap exists, the prima facie case under the UAPA – and the prosecution’s prima facie burden – remains undischarged, and normal principles of bail (not S. 43(D)(5) will apply.
  6. This is specifically important when the allegations pertain to organising – and participating in – protests, which are guaranteed rights under the Constitution. The Court will be specially vigilant to prevent the use of UAPA-type statutes to blur the lines between protests, illegalities committed during protests, and terrorism.

These principles, it is submitted with respect, constitute an ideal template for courts to approach the issue of bail and personal liberty under special statutes such as the UAPA. If applied consistently, they can form the basis of a jurisprudence that respects civil rights, even within the restrictive confines of the UAPA.

Intermediary Guidelines and the Digital Public Sphere: Balancing the Scales

The last two posts examined prominent new features of the Intermediary Guidelines 2021, automated filtering (here), and tracing first originators (here). However, the undoubted goal of the Guidelines, demonstrated by the express regulation of “Significant Social Media Intermediaries”, is to hold large social media companies accountable for their role in structuring online speech. This post examines the scheme of the Guidelines to examine how effectively they regulate social media.

I begin by examining the liability for communicating unlawful speech to understand why intermediaries are granted immunity for hosting unlawful content. Next, I explain the power imbalance between tech companies and internet users. Finally, I analyze the Intermediary Guidelines’ attempt to remedy this power imbalance by providing various reliefs to users vis-a-vis online platforms.

Speech models and their inadequacy for online platforms

In determining liability for communicative acts, the law distinguishes between publishers and distributors. Publishers are liable for the content they publish, while distributors are typically not liable for content they distribute because they are not deemed to know if they are distributing unlawful content. For example, a newspaper may be liable for an article it solicited/sourced, compiled and edited but a newsstand selling the newspaper will not be held liable because it could not be expected to know the contents of every article in every newspaper it sells. (Volumes could be written on the myriad of nuances within these concepts but acknowledging the distinction will suffice for now.)   

However, this publisher-distributor distinction breaks down in the case of online platforms. They are not neutral distributors as they actively moderate and rank content to determine what users see. But they are also not quite publishers, as they are not responsible for creating the content on their platforms. Unlike a newspaper, whose employees write the articles, on platforms, it is internet users not a platform’s employees that create content. Thus, the publisher-distributor distinction serves legislators poorly when deciding how to regulate online platforms.

Further, legislators worry that if online intermediaries are held liable for unlawful content on their platforms (like a publisher), intermediaries would either: (1) adapt their behaviour to fall under the distributor model and exercise no control over their platforms, leading to the internet being filled with the worst kinds of content; or (2) follow the publisher route and takedown any content that was remotely unlawful, leading to vast horizontal censorship by online intermediaries and defeating the purpose of the decentralised, user driven internet. Enter intermediary immunity.

Intermediary immunity and voluntary moderation

The approach taken by several legislatures, including India’s, has been to provide online intermediaries legal immunity for unlawful content on their platforms even though they filter and curate content. This approach ensures two very important goals: (1) online intermediaries can voluntarily filter content without worrying about a publisher’s liability, thus resulting in less abusive speech online for users; and (2) intermediaries have enough breathing space to not take down user content en masse, resulting in the protection of users’ free speech against horizontal censorship. Rule 3(1)(d) (third proviso) of the Intermediary Guidelines 2021 expressly notes that intermediaries will not lose their status as neutral entities even thoughthey may voluntarily remove a wide range of presumptively illegal content from their platforms.

But this is where things start to get tricky. The definition of ‘presumptively illegal speech’ set out in Rule 3(1)(b) of the Intermediary Guidelines is so broad that platforms have immense discretion in what content to take down within the scope of the rule itself. Under Rule 3(1)(b) intermediaries may takedown content that (inter alia):

(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another‘s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force […]

(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation […]

(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person

These are obviously very broad terms and intermediaries may reasonably disagree with their users over whether content falls within these categories. This creates a conflict between the two goals of intermediary immunity. On the one hand immunity is essential to incentivising platforms to freely take down the worst forms of content without risk of liability, but the wide discretion Rule 3(1)(b) gives them results in users eventually complaining of horizontal censorship (as has already happened on both sides of the political spectrum).

(Note: in Shreya Singhal the Supreme Court ruled that the contents of Rule 3(1)(b) should be limited to the restrictions contained in Art. 19(2) of the Constitution. This may be both normatively undesirable and impractical, as there are several categories of content that fall outside of Art. 19(2) that we may want platforms to voluntarily restrict, e.g., copyright and trademark infringing content, sexually explicit content not rising to the ‘public morality’ threshold, fraudulent content causing consumer harm etc.)

Thus, legislation/regulation must balance the protections granted to intermediaries with the risk of horizontal censorship. This is trickier than it sounds, as the underlying interests of platforms (maximising advertising revenue by the collection and sale of personal data) and users (free speech and privacy) can diverge significantly.   

The problem magnified manyfold

As I discussed in much greater detail (here), the problem of horizontal censorship is multiplied severalfold because of two crucial factors. First, large online social media platforms are central to public discourse. Second, because there are only a handful of these platforms, simply leaving a platform (or worse being suspended) can severely curtail a user’s participation in public discourse. As Kate Klonick poignantly notes, ‘we are dependent on these private platforms to exercise out public rights.’

The true extent of how vulnerable citizens are is demonstrated at several layers. First, as moderation is conducted by private entities, it is undemocratic. While platforms may respond to public outcries, this only ensures that the already marginalised are disproportionately impacted with little hope of recourse. Next, platforms do not disclose their moderation policies. While ‘Terms of Service’ and ‘Community Guidelines’ are publicly available, the rules and procedures platforms use to take down content constantly change and are rarely disclosed. For example, Facebook ‘accidentally’ blocked the hashtag ‘ResignModi’, later reinstating the content with no explanation as to the procedure employed either in the take down or reinstatement. Finally, the stranglehold online platforms have over public discourse may be leveraged by democratic governments to entrench their power by silencing criticism.

Balancing the scales

Just as gender and caste have historically constituted centres of private power, modern social media represents a new site where citizens are dominated. Regulation must seek to remedy this power imbalance but also ensure that the other interest behind intermediary immunity (incentivising voluntary moderation by not saddling platforms with a ‘publisher’s liability) is not annihilated. The Intermediary Guidelines leaves the basic structure of intermediary immunity untouched (except for several additional compliance requirements by social media companies geared towards expanding investigative and enforcement powers) but attempts to remedy the power imbalance by granting users several reliefs vis-à-vis online intermediaries.    

Just as platforms have the discretion to both take down and not take downspeech, internet users may also seek both outcomes. A user may be aggrieved by content and want an intermediary to take down content (the “Take Down Relief”). Alternatively, a user may be aggrieved by the decision of a platform to take down content, and want it reinstated (the “Keep-Up Relief”).

The Take Down Relief

One part of the Take Down Relief involves citizens approaching courts seeking orders (typically in the form of an injunction) against content being displayed online. The Supreme Court in Shreya Singhal ruled that it was impermissible to require online intermediaries to take down content merely because someone complained against a piece of content – a judicial order was necessary (¶117). The decision is in line with the above stated twin goals of intermediary immunity. By protecting platforms from liability until they received a court order, intermediaries could continue to voluntarily remove the worst forms of content from their sites. Crucially, by protecting platforms from being sued for content on their sites until a court ruled the content was (at least prima facie) unlawful, intermediaries would not take down content en masse, thus avoiding horizontal censorship. Courts would weed out frivolous complaints and direct intermediaries to take down content after balancing all the interests involved.

Thus, users do have a Take Down Relief against illegal content in the form of courts and the Intermediary Guidelines 2021 do not interfere with this relief (in fact they expressly recognise it). However, this is by no means a perfect relief, given the time and costs involved in getting a court order. Further, Rule 3(1)(b) is so broad that courts have little guidance (and a lot of discretion) when deciding to take down online content. For example, the Delhi High Court noted that some factors that should be considered prior to take down are (i) the comparative importance of the rights at issue; (ii) the availability of less restrictive measures; (iii) the costs associated with implementing the measures; and (iv) the efficacy of the measures implemented by the ISP. However, another bench of the High Court merely noted that the plaintiffs had demonstrated a prima facie case of defamation and directed the intermediary to block the content. Yet another bench directed search engines to de-index content and permitted a plaintiff to directly approach Internet Service Providers (ISPs) to block additional content uploaded after the original take down order by the court, allowing ISPs to challenge the take down if they believed the plaintiff has exceeded the terms of the original order (which they have no incentive to do).

Rolling back Shreya Singhal

Rule 3(2) of the Intermediary Guidelines 2021 also introduces a new Take Down Relief. A user may launch a complaint where content “exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation…” The intermediary is obligated to take down such content within 24 hours of receiving a complaint. On the one hand, the Rule empowers users vis-à-vis social media platforms, and a cogent case may be made that where a user complains over explicit/intimate images of themselves uploaded against their consent, and no other interests are involved, users should not be required to go to court. (Note, they may not even haveto go to court if the intermediary agrees and takes down content once flagged, but that approach puts the relief at the sole discretion of the platform.)

On the other hand, requiring intermediaries to take down content at the behest of a private user was an approach expressly rejected by Shreya Singhal to protect against platforms being swamped by complaints and taking down all content that any other user disagreed with. The simple truth is that hard cases exist. For example, the content complained against may depict two people, one who wants the content to stay online and one who wants it taken down. Now imagine the content is also a matter of public interest. These delicate situations where rights need to be balanced are exactly why Shreya Singhal insisted on court oversight to guard against overzealous complainants and over-cautious platforms.

Efficacy probably lies somewhere between Rule 3(2) and Shreya Singhal and the Guidelines could have: (i) distinguished between cases where interests need to be balanced and where they do not be; (ii) set up an independent body/fast track process to hear take down claims; or (iii) narrowed judicial discretion on when content should be taken down. However, the Guidelines ultimately fails to either improve the court order system of Shreya Singhal but also creates a blanket workaround that may lead to content being taken down at the sole behest of a disgruntled user in delicate cases where rights ought to have been balanced by a court.   

The Keep-Up Relief

Users may also have a grievance when platforms take down content that users believe should have stayed up (e.g., see the suspension of Sanjay Hegde’s Twitter account over: (i) the use of August Landmesser’s photo defying the Nazi salute; and (ii) retweeting a poem by a CPI (Marxist-Leninist) politician). As discussed above, while users can review ‘Terms of Service’ and ‘Community Guidelines’, the actual rules and procedures employed to take down content are not transparent.

Prior to the Intermediary Guidelines 2021, a user could pursue a contractual remedy, arguing that the speech did not violate the platform’s ‘Terms of Service’. Such remedies are unlikely to succeed as contracts are typically skewed in favour of platforms and confer broad discretion to take down content. For example, Facebook’s Terms of Service state that it can “remove or restrict access to your content, services or information if we determine that doing so is reasonable necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”

Hedge is presently pursuing a public law remedy under Article 226, arguing that Twitter performs a social/public function and should thus be required to respect his free speech (Art. 19) and non-discrimination (Art. 14) rights. Without going into the merits of this argument, such constitutional gymnastics could be avoided by legislation/regulation that directly gives users recourse against social media platforms. Enter the Intermediary Guidelines 2021.

Before we begin, it should be noted that the Intermediary Guidelines 2021 risks substantially aggravating the problem of intermediary take down itself, by incentivising/mandating social media platforms to employ automated filtering technologies. The imprecision of such technologies is likely to cause more users than ever to seek out a Keep-Up Relief. (See my previous post on the subject here.)

Rule 4(8) of the Guidelines attempts to provide such a Keep-Up Relief. The Rule states that where a Significant Social Media Intermediary voluntarily disables content, the platform must, prior to the disabling of content, provide the creator/poster of the content a “notification explaining the action being taken and the grounds or reasons for such action”. Next, the platform must also provide the user with a “reasonable opportunity” to dispute the platform’s decision and request the reinstatement of the content. This creates a regime where intermediaries must provide reasoned notice and meaningful review to internet users when content is taken down.

On the face of it, this is a step in the right direction as it forces social media platforms to employ some minimum rationality and allows users a chance to contest take down decisions. But how well will this structure of accountability hold up when confronted with hard cases (which it undoubtedly will be)? First, the obligation merely requires social media platforms to provide an opportunity for users to dispute the decision and does not improve on the standards of content evaluation to be applied by them – recall that Rule 3(1)(b) is broad and does not meaningfully restrict the platform’s discretion in decision making. Judges themselves struggle to impose uniform standards on when content should be taken down. While platforms may seek to ensure a measure of uniformity, unlike judicial decisions, the reasoning by platforms under Rule 4(8) is not required to be publicly available and no system of precedent applies – creating a risk of opaque and haphazard decisions.  

The Achilles heel of Rule 4(8)

It is also important to understand that the Intermediary Guidelines 2021 regulate the conditions for intermediary immunity, i.e., the conditions they must satisfy to not be treated as a publisher and sued for hosting unlawful content. Now, even if an intermediary breaches the notice and hearing obligation under Rule 4(8), the consequence is a loss of this legal immunity for hosting unlawful content. But the intermediary is not hosting the content (indeed the whole dispute is because the intermediary is refusing to host the content), so there is no risk for the intermediary to losing this legal immunity. Simply put, intermediaries cannot be sued for content they are not hosting, so there is no legal risk associated with arbitrary voluntary take downs. This highlights the folly of trying to offer users recourse to moderation decisions through conditions of intermediary immunity, which is what the Intermediary Guidelines are. 

Lastly, Rule 4(8) does not open the door for users to go to more legitimate body and argue for content to be reinstated. In fact, if courts were to intervene under Rule 4(8), this would undermine the structure of Section 79 and the Intermediary Guidelines, which are premised on treating intermediaries as neutral even though they voluntarily take down content. In the case of Take Down Reliefs, where Person A is aggrieved by content posted by Person B and asks the Court to direct Intermediary X to stop publishing the content, a Court can provide this relief while still upholding the legal fiction of intermediary neutrality (i.e. accepting Intermediary X’s decision to not take down the content as it is neutral like a newsstand). Section 79, the Guidelines, and Shreya Singhal are premised on not examining the correctness of Intermediary X’s decision to keep the content up.

However, where a platform has taken down content and the user seeks a Keep-Up Relief, Person A would sue Intermediary X for its decision to take down Person A’s post. A court cannot logically grant relief without: (i) acknowledging that Intermediary X is not neutral, in which case it really is more like a newspaper and should be liable for its moderation decision; and (ii) going against the protection for voluntary moderation expressly provided in the Intermediary Guidelines; and/or (iii) engaging in the sort of constitutional and interpretative gymnastics that the Sanjay Hedge case involves. All this leaves the efficacy of the Rule 4(8) Keep-Up Relief at the mercy of large social media companies, and their internal calculus as to whether offering users such recourse will garner them goodwill (see Facebook’s Oversight Board).

Conclusion

The problem the government sought to address with the introduction of the Intermediary Guidelines is a real one. Large social media companies have unbridled power over what users see online at a time when we increasingly live our lives on the internet. This problem cannot be solved unless regulation accepts two significant realities, (i) that intermediary immunity remains central to incentivising intermediaries to moderate content and protecting users against horizontal censorship; and (ii) the current moderation procedures employed by platforms lack transparency, accountability, legal certainty, and disproportionately impact marginalised communities.

By relying solely on the structures of intermediary immunity, the Intermediary Guidelines demonstrates a singular lack of creativity when it comes to regulating online platforms. One alternative approach would be a separate statute with certain minimum standards of conduct for intermediaries (no easy task, but at least one that begins with an acceptance of the problems that need to be solved). As a result, the new Guidelines not only fail to provide users with efficacious remedies to either take down or keep up online content, but it perpetuates the status quo where online platforms are free to exercise arbitrary and dominating power over Indian citizens – with the only meaningful regulatory intervention occurring through government blocking of content when platforms fail to toe the government line.   

The author is grateful to Praharsh Johorey for his comments on the draft of this post.

Coronavirus and the Constitution – XXXVII: Dialogic Review and the Supreme Court (2)

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[Update: On 7th June, the central government announced that starting from the 21st of the month, 75% of the vaccines quota would be centrally procured, that vaccination would be free for over-18s, and that private hospitals would not be permitted to charge more than an administrative fee of Rs. 150. Many of the elements in this new policy come on the back of the Supreme Court’s 31st May order (discussed below) that had, inter alia, returned a prima facie finding that the procurement and pricing policy, as it then stood, was arbitrary and irrational. While it is, of course, an impossible errand to quantify how much of the policy volte face was because of the Supreme Court’s intervention, it is nonetheless fair to say that the Supreme Court’s three orders on 27th April, 30th April, and 31st May have played a significant role, and vindicate the Court’s bounded-dialogic approach towards the exercise of judicial review over the management of the pandemic.]


The 31st May order of the Supreme Court in In Re: Distribution of Essential Supplies and Services During Pandemic is the third substantive order of the Court’s three-judge bench since it took suo motu cognisance of various issues relating to the management of Covid-19. It follows orders on 27th April (that laid out the scope of the Court’s deliberations, discussed here), and 30th April (that laid out a set of directions, recommendations and questions to the government).

The 31st May order limits itself to the issue of vaccinations, in view of the gradual recession of the second wave. In particular, it focuses on the constitutionality of several features of the central government’s Liberalised Vaccination Policy. Recall that according to the Liberalised Vaccination Policy, vaccination manufacturers are required to supply 50% of their doses to the central government, and 50% (with an even split, i.e. 25% each) to state governments and private hospitals (at a pre-declared price). Central government vaccination centres are limited to vaccinating healthcare workers, frontline workers, and people above the age of 45, while individuals between the ages of 18 – 44 must be vaccinated at state government centres, or in private hospitals. Vaccination appointments are to be booked digitally, via the CoWIN app.

In paragraph 19 of the Order, the Court groups its observations under three heads: vaccine distribution between different age-groups, the vaccine procurement process, and the augmentation of vaccine availability. For further ease of analysis, the Court’s observations under each of these heads can be divided into three categories: directions for further information from the central government [“queries”], recommendations [“recommendations”], and findings of prima facie unconstitutionality, requiring a response from the government [“objections”].

With respect to the vaccine distribution between different age-groups, the Order finds that free vaccinations for over-45s and frontline/healthcare workers on the one hand (through the central government channel), and paid vaccinations for the 18-44s on the other (through the state governments/private hospitals channel) is “prima facie arbitrary and irrational” (para 20) [“objection”]. It is important to note that the question here is not whether the government is allowed to charge for vaccinations or not, but discrimination within the existing policy, where one age-group is asked to pay, and another is not.

With respect to the issues around procurement, the Order asks the government for further information. The Liberalised Vaccination Policy allows state governments to bargain with vaccine manufacturers, ostensibly (and as per the central government’s justification) in order to spur “competitive prices and higher quality [of vaccines].” It was pointed out to the Court, however, that vaccine manufacturers were refusing to negotiate with state governments (inter alia for reasons of guaranteed legal immunity, which state governments cannot provide) – as also the fact that the central government, as a monopoly buyer, would have greater bargaining power to drive down prices rather than individual (or even a consortium of) state governments. The Court also notes that, under the Liberalised Vaccination Policy, the basis of pro rata allocation to state governments is both unclear (with respect to the extent of the central government’s intervention) and incomplete (failing to take into account inter-state migration, healthcare infrastructure, demographics etc). It therefore asks the central government to “specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI.” (paragraph 22) In a later part of the judgment, the Court goes on to add that the very reason that the central government is able to bargain for lower prices raises the question of why it cannot procure 100% of the vaccine doses; on that basis, the Court asks the government to clarify how the allocated budget of Rs. 35,000 crores for vaccinations “ha[s] been spent so far and why [it] cannot be utilized for vaccinating persons aged 18-44 years.” (paragraphs 3031)

With respect to vaccination availability, in view of the central government’s recent declaration that 100 crore people would be vaccinated by December 2021, the Order asks the government to place on record its detailed roadmap explaining how this will be achieved (paragraph 23) [“query”], including information on the (future) vaccination of children, the status of crematorium workers, mechanisms for redistribution in case of a mismatch between the 50:50 distribution and the actual orders placed by a state government/private hospitals (paragraph 24).

In the next section of its order, the Court turns to the specifics of the 25% vaccination disbursal to private hospitals. The ostensible logic of this – as per the central government – is that there exists a certain section of society that is able to pay for vaccinations, which will be diverted towards private hospitals. As the order notes, however, the structure of the vaccination policy is such that this may not actually happen. As the Court notes:

However, the present system of allowing only digital registration and booking of appointment on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. As such, even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it. (paragraph 26)

Because of this – coupled with the profit-making character of private hospitals creating the possibility of price-gouging, the order asks the government to provide a set of clarifications about the manner of disbursal of vaccines to private hospitals, regulatory oversight, and means-testing (if any) (paragraph 28).

In the third sub-section, the Court goes on to consider the issue of differential pricing. A part of it has been discussed above; in addition, given the central government’s financial and regulatory contribution to the development of the vaccine, the Order asks for further clarifications regarding the basis of pricing, the central government’s refusal to intervene statutorily, and whether any contracts have been invited for voluntary licensing (paragraph 33). The Order concludes with some further questions on cold storage facilities and the use of the CoWIN app.

There is little doubt that when it comes to judicial scrutiny of the management of the Covid-19 pandemic, the Court must proceed with caution. The purpose of a bounded-deliberative approach – which is how the Court has described its proceedings thus far – is to elicit information from the government – which may otherwise not be available – that forms the basis of policy. While the merits of the policy, of course, are not subject to judicial review, the purpose of dialogic review is to (a) gauge, on the basis of the information provided, whether the policy is sufficiently backed by reason, to pass constitutional scrutiny; (b) whether, in response to judicial nudges, the political executive tweaks or modifies policy in order to make it constitutionally compliant; and (c) if the answer to both (a) and (b) is negative, then – in the last resort – to invalidate those parts of the policy that violate constitutional rights (in this case, the rights to equality and health). The court’s orders so far have fallen within the first phase of dialogic review, and justifiably so (and on some respects, such as hospital admissions, have resulted in policy changes, moving into phase 2). The question now, no doubt, will be whether the central government’s responses – due in two weeks’ time – will see the proceedings move into phases 2 and 3. In this respect, it is important to note an observation made in this order: that, while at the beginning of the pandemic, the political executive is to be provided maximum leeway and “play in the joints”, given the overall uncertainty, as time progresses – and as more information becomes available – the actions of the executive are to be held to stricter account on the touchstone of constitutional rights. As we are now into the second year of the pandemic, and a few months into the second wave, it remains to be seen what form this stricter judicial review will take in future hearings.