The Upcoming Sedition Case before the Supreme Court: Key Issues

On the 5th of May, a three-judge bench of the Supreme Court will begin hearing a challenge to the constitutional validity of Section 124A of the Indian Penal Code (the offence of “sedition”). A series of administrative moves over the past one week – such as restricting arguments to one counsel, resisting the addition of further petitions to the case, and setting aside two specific days for arguments – suggests that the bench, which is led by the Chief Justice, intends to substantively hear the case, and issue a judgment (probably after the summer break). In this blog post, I will examine some of the constitutional issues in this case.

Preliminary Issue: Referral

This is not the first time that the Supreme Court is hearing a challenge to the constitutional validity of sedition. In 1962, in the Kedar Nath Singh judgment, a five-judge bench of the Supreme Court considered the question, and upheld the constitutionality of Section 124A. Under our constitutional jurisprudence, judgments of the Court can be reversed at a later date (the most striking recent example was the reversal of the judgment in Koushal by the judgment in Navtej Johar, on the decriminalisation of same-sex relations); however, ordinarily, this can only be done by a larger bench. Because Kedar Nath Singh was decided by a bench of five judges, it would need a bench of seven judges – or more – to reverse it. Benches of five or less are bound by Kedar Nath Singh. Note that this is not pedantry or hair-splitting: in a Supreme Court that has thirty or more judges at any given time, and which hears cases in panels of two, judicial discipline when it comes to precedent is particularly important. If departure from this rule was to become commonplace, the Supreme Court’s jurisprudence would lose its anchor, with any decision (including “good judgments” from the past) potentially subject to radical revision at any moment. This is also of particular importance at a time when ambush PILs – often seeking outrageous reliefs – are regularly filed before the Courts, and sometimes even entertained.

In the ordinary course of things, therefore, if the three-judge bench feels that the time has come for the Supreme Court to reconsider the issue, the correct course of action is to refer the case to a bench of five, which will – in turn – refer it to a bench of seven. There has been some argument that this is not necessary, as the judgment in Kedar Nath Singh has been “eroded” by time. That may well be correct, but that is not a call for a smaller bench to make. Even if it is true the foundations of Kedar Nath Singh can no longer stand because of subsequent developments in the law, on the specific point that it has decided – i.e., the constitutional validity of sedition – Kedar Nath Singh continues to bind smaller benches.

There is, however, one exception to this rule, and that is the doctrine of per incuriam. A judgment is per incuriam if it is passed in ignorance of either a binding statute, or a binding court judgment. Notice that the threshold is a high one: it is not sufficient to say that judgment A misinterpreted the law, or misunderstood judgment B. One has to show that there was a law or a judgment that was binding, and was ignored by the Court. However, once this high threshold is met – i.e., a judgment is per incuriam – then it is deemed to have no existence in law, and subsequent benches – including smaller ones – can proceed as if it did not exist.

It is my submission, therefore, that the three-judge bench can only decide the constitutional validity of sedition, without reference to a larger bench, if it first finds that the judgment of Kedar Nath Singh is per incuriam.

Is Kedar Nath Singh per incuriam?

In my opinion, there are good reasons for arguing that the judgment in Kedar Nath Singh is per incuriam. In Kedar Nath Singh, the finding that Section 124A was constitutional was based upon the argument that the words “disaffection”, “hatred”, or “contempt” against the government established by law – the gravamen of the offence – entailed within them a requirement that the seditious words must carry a “tendency” towards public disorder. The Supreme Court borrowed the word “tendency” from prior judgments of the pre-Independence Federal Court, which had considered how to interpret S. 124A. The Supreme Court held that this “tendency” to public disorder test was consistent with Article 19(2) of the Constitution, which requires that any restriction upon the freedom of speech and expression be “reasonable.”

In doing so, however, the Supreme Court failed to notice the existence of a judgment by a bench of equal strength, that was binding upon it. Two years before, in Superintendent v Ram Manohar Lohia, the Supreme Court had held that the legal test under Article 19(2) requires there to be a proximate connection between the speech and the (feared or actual) public disorder. For example, inciting a mob to go and burn down a building meets the test of “proximity.” However, giving a public speech asking people to disobey a tax law – which was the issue in Lohia – does not meet the test of “proximity”, as there is a wide gap between a call for civil disobedience, and the threat of a violent revolution (for details, see Ch. 3 of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, by the present author).

The judgment in Kedar Nath Singh ignored the binding judgment in Lohia, and the legal test of proximity. Instead, its “tendency” test – which was the basis upon which S. 124A was upheld – does not carry with it the proximity requirement. This is evident: the word “tendency”, by its very nature, is boundless and boundlessly manipulable. As G.D. Khosla wrote, for instance:

Anything may have a tendency for almost anything. A lamp post may be taken as a phallic symbol, a convenient object for canine relief, a source of light, evidence of civilization, something to lean against when waiting for a bus or something to demolish in order to demonstrate a sense of rebellion or discontent. So what is the tendency of a lamppost? (G.D. Khosla, Pornography and Censorship in India).

Kedar Nath Singh, therefore, meets the strict threshold fo a judgment to be per incuriam. It ignored binding precedent, and in consequence of that, applied the wrong constitutional test in order to uphold the constitutionality of sedition.

The Unconstitutionality of Sedition

With Kedar Nath Singh out of the way, it is therefore possible for the three-judge bench to hear and decide the constitutionality of sedition.* And it is at this point that I believe that the argument becomes simple and straightforward. Over the last sixty years, the Supreme Court has steadily refined the proximity requirement under Article 19(2) of the Constitution. In Ram Manohar Lohia, it required the link between speech and disorder to be “proximate.” In S. Rangarajan v P. Jagjivan Ram, it required that the link be like a “spark in a powder keg.” In Arup Bhuyan, it adopted the Brandenburg standard of “incitement to imminent violence.” This was then affirmed in Shreya Singhal, where the Supreme Court categorically distinguished between “advocacy” (of disorder and violence) and “incitement”, and noted that only the latter could be lawfully prohibited in a manner that was consistent with the right to free speech.

There are strong reasons why this is the correct approach: these have to do with the point of free speech in a democracy, the need to respect the autonomy of both speakers and the audience, and to ensure that the responsibility for an illegal act lies on the person who actually does it, and constraining the State from having too much power to decide what speech is acceptable and what isn’t. However, we do not need to go into those arguments in too much detail for this post, as our purpose here is to set out the law as it is. In this context, given that the correct test is that of “incitement to violence”, it is evident that there is no interpretation of s. 124A that can square the words of the section with the legal test. s. 124A punishes anyone who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India].” No amount of interpretive pyrotechnics can bridge the gap between “bringing into hatred, contempt … or disaffection” with “incitement to violence.” I can try to persuade you to hate a thing, to have contempt for it, and to be disaffected by it, without any attempt to incite you to violence against it. The states of mind are entirely separate.

S. 124A, therefore, is “over-broad”: it criminalises speech that can be lawfully punished (incitement to violence) as well as speech that is entirely within the bounds of law (non-violent but critical speech). That – without anything more – is sufficient for the Court to declare it to be unconstitutional. The argument may sound simplistic, but that really is all that there is to it: over the years, courts at all levels have tied themselves into knots trying to reconcile the wide and vague language of s. 124A with the actual legal test. They have had to do so because Kedar Nath Singh gave them no other choice; but the opportunity is now here to cut the knot once and for all.

Consequences

A final question may be raised: is there any real point to this hearing? We have seen over many years that sedition is not the only – and indeed, not even the most virulent – legal provision that can be used to incarcerate inconvenient people. That dubious honour belongs to a range of preventive detention statutes – but also, specifically, to Section 43(D)(5) of the UAPA, which prohibits the grant of bail as long as there is a “prima facie” case against an accused. The removal of “sedition” from the statute books, therefore, might be little more than symbolic: all it will do is remove one string from a bow that already has far too many of them.

This is not an inaccurate critique. When a Trial Court or a High Court refuse to grant bail, they cite the UAPA judgment in Watali, not the sedition judgment in Kedar Nath Singh. A reconsideration or reappraisal of Watali – and indeed, the broader bail jurisprudence in the country (see e.g. the work of Abhinav Sekhri on this) – would do more for civil liberties than the striking down of sedition. That said, however, there is good reason why – if the Court does strike down sedition – the judgment will be more than just symbolic. This is because – as I have indicated above – striking down sedition will require a reiteration of the incitement standard. This reiteration is important, Article 19(2) applies to both sedition and the UAPA. Indeed, a significant number of bail denials in recent times stem from a mis-construal of the incitement standard. A recent example – although not a denial of bail (yet) – was the Delhi High Court questioning parts of Umar Khalid’s speech (for which he is incarcerated under the UAPA): for instance, his use of words such as “krantikari” and “inquilabi”, and his criticism of the Prime Minister. Under a proper appreciation of the incitement standard, these questions are not even remotely relevant: the incitement standard requires a clear and cogent showing of how a person is instigating a set of people to imminent violence. This is not to be implied from inferences or speculation about the speaker’s motives, but has to be staring at you in the face (hence the colourful image of the “spark in a powder keg”).

Thus, a strongly reasoned Supreme Court judgment on the constitutionality of sedition – one that reiterates the incitement standard – would indeed go beyond mere symbolism. It would add to the body of pro-civil liberties legal doctrine in India, and would be of some assistance in attempts to check State impunity and abuse of power under other laws such as the UAPA. Of course, how much of a help it would be depends upon the Court’s eventual reasoning, and how strongly and in what way – in the immediate future – it becomes embedded in our jurisprudence.


* I still believe that referring to bench of five would be more proper, and would also make for more enduring jurisprudence, but perhaps that ship has sailed.

The Kerala High Court as India’s Star Chamber

In medieval England, the Star Chamber was a special judicial court that was set up as a “supplement” to the regular common law courts. Over the course of time, the Star Chamber came to be known as the “judicial arm of the King”, tasked with crushing dissent and enforcing the unpopular policies of the monarch. Its proceedings were characterised by secret hearings, secret evidence, arbitrary sentences, and punishment for jurors if they found against the State. Having written its name into infamy, in modern times, the Star Chamber has come to stand for “any secret or closed meeting held by a judicial or executive body, or to a court proceeding that seems grossly unfair or that is used to persecute an individual.”

While in recent times, there have been a few judgments by our courts that recall the Star Chamber to mind (see this post about “sealed cover jurisprudence“), the story of the MediaOne TV channel ban before the Kerala High Court takes us out of the realm of “recalls the Star Chamber” or “brings the Star Chamber to mind” or “is reminiscent of the Star Chamber”, and places Indian jurisprudence directly in Star Chamber territory. In other words, there is no perceivable distinction between what the Kerala High Court has done, and what this medieval body, set up to persecute the King’s political opponents, used to do.

In my previous post, I had examined the “judgment” of the single bench of the High Court, that had upheld the government’s ban on the MediaOne TV channel, and had imposed “censorship by sealed cover.” Today’s “judgment” by a division bench of that same High Court is – if such a thing was possible – even worse than the judgment of the single bench. In a 42-page “judgment”, the division bench upholds the order of the single judge. The actual “analysis” is found in exactly one paragraph out of these 42 pages, paragraph 55:

Likewise, the application filed seeking permission for the renewal of the uplinking and downlinking of “Media one TV” was considered in the year 2021 and wherein also, we find that there are certain serious adverse reports by the Intelligence Bureau against M/s. Madhyamam Broadcasting Limited and its Managing Director. It is true that the nature, impact, gravity and depth of the issue is not discernible from the files. But, at the same time, there are clear and significant indications impacting the public order and security of the State. Since it is a confidential and sensitive file maintained by the Ministry of Home Affairs, Union of India, we are not expressing anything further in the interest of national security, public order and other aspects concerning the administration of the nation.

While the astonishing character of this paragraph tends to speak for itself, it is worthwhile setting out a brief recap:

  1. MediaOne Channel was banned by the government. The party that was banned was not given specific reasons for the ban, because ‘national security.’
  2. The party that was banned challenged its ban before the Court, on the ground that its constitutional rights had been violated. Before the Court, the specific reasons for the ban were not justified by the State – and therefore could not be contested – because ‘national security.’ Instead, they were provided to the Court in a sealed cover.
  3. On perusing the material in the sealed cover, the Court was forced to concede that the “nature, impact, gravity and depth” (what remains?) of the issue was not “discernible”, but nonetheless, the ban was valid, because ‘national security.’
  4. The Court exempted itself from the intolerable burden of conducting any factual, legal, or constitutional analysis of the case, because ‘national security.’

What boggles the mind most in the above sequence is that the Court – in a rare moment of candidness – actually admitted that the files before it revealed nothing about the “nature, impact, gravity and depth” of the issue. But if that is the case, then the law – if the law matters at all to this Court, because it appears that it does not – would have required it to reach a contrary finding. The proportionality standard under Indian constitutional law requires Courts to specifically consider the “nature, impact, gravity and depth” of an issue when constitutional rights are in question. The rationality prong of the test asks whether the State restriction bears a “rational nexus” with the goal. The necessity prong asks whether the restriction (in this case, a complete ban) was the “least restrictive measure” open to the State. the strict proportionality prong asks whether the extent of the restriction (in this case, a complete ban) outweighs the intensity of the right (freedom of speech). None of these steps can be performed without considering the “nature, impact, gravity and depth” of the issue. A Court is meant to apply the law (that it is bound by) to the facts of the case, not go by vibes. Or so we are led to believe.

It is therefore not an exaggeration to call this Star Chamber territory – indeed, one would wager that the Star Chamber was more inclined towards the basic requirements of the rule of law than the Kerala High Court. Perhaps an even more accurate term is what, in the US, is called “a court going rogue“: that is, a court – as I have indicated above – that has simply liberated itself from even the pretence of acting like a judicial institution. The law? Doesn’t matter. Binding precedent? Doesn’t matter. The requirement to apply law to facts? Doesn’t matter. The requirement to give reasons for a judgment? Doesn’t matter. Open and transparent justice? Doesn’t matter. Procedural safeguards? Don’t matter. The right to contest the basis on which my constitutional freedoms have been restricted? Doesn’t matter.

As for the rule of law and the protection of fundamental rights: those stopped mattering to this court a long time ago.

The Hijab Case: Round-Up

This is a round-up of blog posts that have discussed various issues in the ongoing hijab case before the Karnataka High Court, on which judgment has now been reserved.

  1. The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing (see here).
  2. Guest Post: The Hijab Case through the Lens of Article 19(1)(a) [by Hari Kartik Ramesh] (see here).
  3. Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya [by M. Jannani] (see here).
  4. Guest Post: The Hijab Case Through the Lens of Proportionality [by Shreyas Alevoor] (see here).
  5. Guest Post: The Hijab Case through the Lens of Intersectionality [by M. Jannani] (see here).

Guest Post: The Hijab Case through the Lens of Article 19(1)(a)

[This is a guest post by Hari Kartik Ramesh.]


Controversy has raged in the corridors of educational institutions in Karnataka on the matter of uniforms. In the beginning of 2022, the Karnataka government issued an order to government educational institutions, insisting that the administration of each educational institution follow the policy of prescribing a singular uniform policy for their institutions. The order noted that clothes which disturbed public order, equality and integrity within the schools would be banned. The order noted that the government had noticed a trend of religious attire being worn instead of merely the prescribed uniform and argued that this disturbed equality and public order within schools. The order was used by administrations of educational institutions in colleges in Karnataka to bar Muslim women wearing the Hijab from entering the educational institute. In some cases, though the women were allowed to enter the institute, they were segregated and attended classes separately from other students.

Prima facie, the matter appears to be an issue primarily concerning the freedom to religion enshrined under Article 25. It may be argued that Hijabs are essential to the religion of Islam, and therefore by debarring Muslim women from educational institutions for wearing the Hijab, their freedom to express their religion is being infringed upon by the State. While intuitively an argument along the lines of freedom of religion is attractive – and indeed, it is precisely the line of argument counsel for the petitioning Muslim women argued in the Karnataka High Court, it presents several issues. This piece shall argue that rather than a freedom of religion-based judgement, the High Court ought to base its judgement on the grounds of Freedom of Expression.

The Problem With Article 25-centric Arguments

The question of which aspects of a religion are guaranteed protection under Article 25 of the Constitution is a complex one. In order for the state to be unable to interfere with the religious practice, it must be proven that the practice constitutes an essential part of the religion. This Essential Religious Practices (ERP) test has been critiqued by scholars for several decades. They have noted that under the ERP, the court often becomes a theological institution, and effectively results in non-followers of a religion explaining to followers of a religion how certain practices are not in fact essential to their religion. Even if the judges did follow the religion in question, courts are generally not equipped to conduct such theological enquiries, are ill-suited for the task, and consequently have failed to produce a consistent framework or guidelines regarding how the court ought to carry out the enquiry of whether a practice is indeed an ERP.

Only a narrow sliver of religious practices are recognised as an essential religious practice. For example, mosques were considered not essential to Islam and a religious dance was considered not essential to a community, despite the fact that the religious documents of the community explicitly labelled it as an essential practice. It may very well be argued that a Hijab will satisfy the test for essential religious practices. However as precedent, only those who are able to prove that their outfit, or accessory on their uniform, is of a religious nature and essential to the religion, would be able to receive constitutional protection. Thus, as precedent, the judgement may have extremely limited value.

However, I propose instead that the court has an opportunity to build on its free speech jurisprudence. Grounding the reasoning in the terms of compelled speech would give protection to a more varied form of expressions and objections as opposed to purely religions terms. Indeed, as shown above, many religious objections may also fall foul to the high standard of ERP imposed by the Supreme Court. Therefore, the approach of compelled speech and expression would be a more suitable path for the court to utilise.

Clothes as a Form of Symbolic Speech

There is a long history of small amendments to uniforms being used to send a political message. School children in the United States wore black armbands in protest of the Vietnam War in the 1960s and 1970s. In India students have worn black badges in Manipur, as a sign of solidarity for public demands for strict punishments for certain murderers. University students wore black armbands to protest lack of pay for Physiotherapists, violence in Jawaharlal Nehru University in 2020 etc. These are clear examples where political views were expressed through a piece of clothing such as badges or armbands. Students have used such simple, yet effective and symbolic means of protests for decades.

School children in Des Moines were punished for black armbands as it was argued the armbands violated the school uniform. The case reached the Supreme Court of the United States (SCOTUS) wherein the court laid down its famous judgement of Tinker v Des Moines Independent School District that the black armbands was constitutionally protected speech. The majority observed that school students had not surrendered any of their fundamental rights by deciding to enrol in a school, observing that:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court noted that due to the circumstances surrounding the armbands, that is, the students were wearing it to specifically protest the Vietnam War and were therefore making a political statement, such symbolic conduct would amount to speech. The court noted:

“It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. “

As it was an issue of free speech, the court noted that the only reason for which restrictions may be placed on symbolic speech/conduct amounting to speech is when such conduct caused an immediate disturbance and disturbed the peace and order of the school. The majority noted that black armbands by themselves could not constitute a disturbance to any form of public order and therefore the punishments faced by students were unconstitutional as it amounted to an infringement on their right to free speech. The majority concluded its opinion, observing:

“These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.”

Tinker represents the court’s acknowledgement that deviations from school uniform can express a message, or a viewpoint and those deviations may not be punished by school authorities unless there was a countervailing interest in maintaining order which was threatened by the deviation.

The idea that certain non-verbal conduct is loaded with meaning due to the nature of conduct and the context the conduct occurs in that the conduct is akin to speech has been accepted in Indian Constitutional Jurisprudence as well. In NALSA v Union of India whilst dealing with several constitutional issues regarding the transgender community, the court makes an important observation that people express their gender-identity through their mannerisms and clothes, and such expression is a fundamental right guaranteed under Article 19(1)(a) of the constitution (para 62). The court refers to the US cases City of Chicago v. Wilson et al and Doe v. Yunits et al as examples wherein courts stated that expression of gender-identity through choice of clothes is a key aspect of a person’s fundamental right to expression and autonomy. Having cited these cases the court concludes that:

“Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc”.

Through the NALSA judgement, the court broadened the scope of Article 19(1)(a) to include non-verbal speech as well. Much like in Tinker where, in the given context, the black armbands represented anti-Vietnam fervour in the students, in the societal context, the choices a person made regarding the clothes they wore could communicate an important part of their gender-identity to society at large. Thus, the meaning of the non-verbal speech did not have to be a purely political one (that is relating to a governmental policy), it would suffice if the impugned conduct/action communicated an aspect of the person’s identity to the audience.

This idea was further articulated in the judgement of Navtej Johar v Union of India dealing with Section 377 of the Indian Penal Code which criminalised homosexual sexual acts. Whilst striking it down on the anvil of privacy, autonomy and discrimination, Chief Justice Misra (along with Justice Khanwilkar) additionally struck down the section on the ground of violation of free speech (para 247). The court observed that the section caused many in the queer community to live their lives in secret, out of fear of being accosted by the police. This chilling effect amounted to a violation of the freedom of expression. Section 377 criminalised sexual acts, not any form of verbal speech of any form. However, due to the chilling effect on the queer identity caused by the legislation, it violated free speech. Thus, due to the impact of the provision causing a person to be unable to communicate an aspect of their identity to society, a freedom of expression violation had occurred. Justice Indu Malhotra in her concurring opinion cited the NALSA judgement that individuals have the right to express their gender identity in the manner they choose through mannerisms, clothes etc and extends this principle to sexual orientation as well, thus striking down the section on the anvil of free speech (para 17.1-17.2).

Further from home, in case similar to NALSA, the Malaysian Court of Appeal in Muhamad Juzaili bin Mohd Khamis v. State Government of Negeri Sembilan struck down legislation criminalising the act of cross-dressing on the grounds of it violating free speech, whilst citing Tinker and NALSA. The court held that cross-dressing involved a form of symbolic speech as the conduct communicated a part of the person’s identity to the audience. Therefore, as the conduct did not cause a public order problem, the state had no justification for criminalising it (Page 23).

Bijoe Emmanuel v Nalsa

In the famous Bijoe Emmanuel case, students who were Jehovah’s Witnesses were punished and expelled form a school due to their refusal to sing the national anthem. The SC held that compelling the students to sing the anthem would infringe on their fundamental rights and therefore would be a violation of the Constitution. The court’s judgement revolved around the fact that the opposition to the singing was based in religion. Thus, any politically motivated reason for not wishing to sing the national anthem could perhaps not use Bijoe Emmanuel for precedential value in making their case. If a  situation like Colin Kapernick  (NFL athlete who kneeled during the national anthem to protest police brutality in the United States) occurred in India, the Bijoe Emmanuel judgement might not be of great assistance.

However, was the nature of the source of the objection relevant in the case? Why should a decision motivated by politics to not be compelled to participate in the singing of a song, be given less protection than a decision to not sing grounded in religion? In both instances a person is being compelled to participate in an activity at risk of sanction despite their personal discomfort, abhorrence and the fact that the activity goes against their beliefs. The important fact ought not to be the nature of the source of objection but rather the fact the individual is being compelled to participate in the activity and take part in a form of expression they object to. Sincerity of beliefs can exist in political ones just as they do in cases of religious beliefs. This piece is not arguing that politics in itself is a form of a religion, instead it is being argued that the distinction is irrelevant when looking at it from a perspective of forced speech/forced expression.

Instead of going down the path of Bijoe Emmanuel wherein the religious source of objection played a central role in the Court’s analysis of freedom of expression, the proposed alternate framework would utilise an understanding of symbolic speech seen in NALSA. The alternate framework would be that, any conduct which communicates an intimate aspect of a person’s identity to society would amount to non-verbal speech (aka symbolic speech). Censorship of such symbolic speech would have to abide by the reasonable restrictions placed on free speech as listed in Article 19(2).

On an application of the proposed alternative framework in the case of the Hijab bans of Karnataka it is clear that the bans are unconstitutional. Muslim women have argued that given the marginalisation faced by Muslims in society, publicly wearing a Hijab is an act of resistance and solidarity. When a person wears a Hijab, they are communicating their religious affiliation through the piece of clothing. The Hijab symbolises that person’s Muslim identity to a viewer, it is not an unclear message as seen by the fact that a major argument against allowing students to wear the Hijab is that it is a religious symbol.

Therefore, it can be easily established that wearing the Hijab is a form of symbolic speech. One of the arguments against allowing the wearing of Hijab is that it creates a law and order situation, which is seemingly proven by the outbreaks of violence in Karnataka, thus allowing the government to justify the restriction on grounds of Article 19(2).  However, a closer analysis of the violence is required. The fact that Muslims were wearing the Hijab by itself, was not a source for violence. It was only after the enforcement of the government order, and the counter-protests, that the law-and-order situation deteriorated.

Hijabs, thus, cannot be equated to “fighting words” (i.e., speech of such nature that, itself, provokes violence and chaos). The more appropriate applicable concept here is the “heckler’s veto”, i.e. if an objector to a certain form of expression is able to cause enough chaos, the state may opt for the easier option of silencing the speaker rather than stopping the violence. The SC has clearly stated in Prakash Jha Production and Anr v Union of India and Viacom Media 18 Pvt. Limited v Union of India, that the state cannot utilise the Heckler’s veto to attempt to silence individuals. The court observed that the state has an obligation to ensure that permissible speech is provided the adequate protection required in order to ensure it is not silenced by threats of causing violence. It has been established that the Hijab is a permissible form of symbolic speech, therefore the state is obligated to protect the wearers of the Hijab.

A final argument may be made that due to the Secular nature of India, it is open for government institutions to prohibit religious attire. However, this line of argument fails to take notice of the fact that Indian secularism has consistently differed from the form of secularism practiced in European countries. The French idea of secularism of state and church being distinct, with religion being a private right with no relevance to the public sphere of the state, is distinct from Indian secularism. In France, any form of religious imagery including turbans are banned in schools, which is completely unlike India where turbans have never been banned in public institutions. Thus, Indian secularism has always seen equidistant involvement of the state with religion rather than maintaining an arm’s-length distance.

Conclusion

An argument against the proposed framework may be made that it would lead to the death of uniforms as a concept as every student would find one aspect of their identity they wished to represent through a deviation from the standard uniform. The common thread between the protests against Vietnam War through black armbands and the Hijab is that the rest of the uniform is followed. There is merely an addition made whilst the student continues to be clothed in the prescribed uniform. In the case of  R (Begum) v  Governors of Denbigh High School the House of Lords rejected the contention of a Muslim student that she ought to be able to wear a ‘Jilbab’ (Muslim full body attire) partially because the school allowed for ‘Hijabs’ and that the school had taken efforts to ensure that the uniform code was ‘Muslim-friendly’. Thus, a line of distinction can be drawn if necessary that deviations of uniform still require that the rest of the uniform be abided by.

In sum, therefore, the Karnataka High Court has an opportunity to continue the growth of a novel jurisprudence of free speech which was germinated in the NALSA decision. The High Court ought to base its ruling on broad-based grounds of free-speech rather than restricting itself to the comparatively narrower grounds of protection of essential religious practices.

The Information Technology Rules and the Bombay High Court’s Stay Order

The Bombay High Court’s order of 14th August 2021, which stayed the application of Rule 9 of the Information Technology Rules 2021, repays careful study. The Leaflet legal news portal and the journalist Nikhil Wagle had filed challenges to the Rules as a whole, and by way of interim relief, had pleaded for a stay on Rules 7, 9, 14, and 16. While the Court declined to grant a stay on Rules 7, 12, and 14, it did agree to stay Rule 9, which requires online publishers to mandatorily comply with a “Code of Ethics” (as set out), or face prosecution. The “Code of Ethics”, in turn, is contained in an appendix to the Rules, and includes compliance with the Press Council of India norms as well as the Programme Code under the Cable Television Networks (Regulation) Act.

As a perusal of the Gazette Notification reveals, the 2021 Rules are purported to be passed under the authority of Sections 87(2)(z) and (zg) of the IT Act 2000. Section 87 of that Act delegates rule-making power to the government, and 87(2)(z) specifically authorises the making of rules for the blocking of online content, while 87(2)(zg) does so for regulating intermediary liability. The Division Bench of Datta CJ and Kulkarni J held that Rule 9 was prima facie ultra vires Sections 87(2)(z) and (zg) of the IT Act, as, first, it envisaged penalties and consequences under entirely different statutory regimes (the Press Council Act and the Cable Television Networks Regulation Act) (paragraph 25); secondly, that the Information Technology Act – as a whole – did not intend to censor online content (except with respect to blocking under S. 69A) (paragraph 26); thirdly, Press Council norms under the PCI Act were themselves clearly stated to be limited to moral imperatives, and not legal ones. Under Rule 14(5) of the IT Rules, however, breach of the Code of Ethics (which included the PCI Norms, as pointed out above) could result in serious sanction, such as removal or deletion of content (paragraph 27); that if the Programme Code from the Cable Television Network Regulation Act was applied to publishers and curators of online content, it would lead to unconstitutional results, such as precluding them from criticising public figures (paragraph 28); and that consequently, the operation of Rule 9 would lead to a chilling effect upon online publishers, with the risk of being hauled up for punishment “should the inter-departmental committee be not in favour of criticism of any public figure.” (paragraph 29) Thus:

As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now. People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well-recognized Constitutional ethos and principles. (paragraph 30)

Thus, on the combined basis of ultra vires and a violation of Article 19(1)(a), the High Court held that the case for a stay had been made out (paragraph 32).

There are two brief comments that I want to make on this well-reasoned stay order. The first is that whether or not the learned Justices so intended, the reasoning in the stay order applies directly to the Cable Television Network Regulation Act and its Programme Code as well. It would be illogical to hold that the provisions of the Programme Code have a chilling effect on the freedom of speech when applied to publishers or online content, but do not when applied to television channels. This is especially true as the original – albeit flawed – distinction in the K.A. Abbas judgment between written content and audio-visual content, with the latter being held to a stricter threshold, obviously does not hold when you are comparing audio-visual content with online content. Datta CJ and Kulkarni J were entirely right to note that the provisions of the Programme Code, as applied in the context of the IT Rules, are prima facie unconstitutional, and for exactly the same reasons, it is submitted that they are unconstitutional per se (note that violations of the Programme Code are also – like in the case of the IT Rules – adjudicated in the first instance by a government committee). Thus, perhaps the time for a court to squarely examine them is at hand!

The second point is that the Court declined to grant a stay on Rule 16 of the IT Rules, which provide for blocking. Inter alia the Court observed that this provision was in line with S. 69A(1) of the IT Act, which authorised the blocking of online content where it was “necessary or expedient” to do so in the interests of any of the eight sub-clauses set out under Article 19(2) of the Constitution. Admittedly, the constitutionality of S. 69A had been upheld in the Shreya Singhal judgment, and consequently, there was not much the High Court could have done here even if had been so inclined. This only reveals – yet again – however, how unsatisfactory the Shreya Singhal judgment is on S. 69A. To start with, recall that the word “expediency” too broad and vague as a justification, while also falling outside of the proportionality standard, for the restriction of fundamental rights. Indeed, there is something ironic about a statute that allows for constitutional rights to be restricted when “expedient”; one might wonder what is left of the content of a right when it can be curtailed whenever the government feels it expedient. Furthermore, and bracketing this for the moment, it is submitted that Shreya Singhal erred in upholding a copy-paste job from Article 19(2) of the Constitution to the S. 69A. The point of Article 19(2) is to provide a set of standards that allow courts to judicially review speech-restricting laws. The point of Article 19(2) is not to provide a template for legislation that essentially takes the form: “the government may restrict rights when it is constitutionally correct to do so.” Under any standard, this would amount to impermissibly excessive delegation on part of Parliament to the Executive – because it is Parliament’s task to prescribe, with specificity, the circumstances under which the Executive is authorised to restrict rights, and to what extent.

As pointed out above, this is not intended to be a criticism of the Bombay High Court order, as the Court was, of course, bound by Shreya Singhal. It is interesting to note, however, that the stay order reveals that the challenge to the IT Rules 2021 is yielding both a new set of issues around online free speech for courts to consider, as well as demonstrating old pathologies anew. It will thus be important to track the further progress of this case through the judicial hierarchy.

Guest Post: Resolving the Good Samaritan Paradox: An Enabler for Proactive Content Moderation? 

[This is a guest post by Pranay Jalan.]


Over the past few months, there has been evidence of the incursions made by Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“IT Rules 2021”), so much so that the validity of these Rules is now pending before the Supreme Court. With the Rules coming into force, intermediaries’ obligations to be wary of content on their platforms has witnessed a shift. The obligation to “do more” while remaining “passive” under s.79(2) of the Information Technology  Act, 2000 (“ITA, 2000”), until this point, remained an irreconcilable contradiction within the pre-existing Information Technology (Intermediary Guidelines) Rules, 2011 (“IT Rules 2011”).

The Proviso to Rule 3(1)(d) (“Proviso”) under the IT Rules 2021 aims to resolve this contradiction insofar as it states:

“… the removal or disabling of access to any information, data or communication link within the categories of information specified under this clause, under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) by such intermediary, shall not amount to a violation of the conditions of clauses (a) or (b) of sub-section (2) of section 79 of the Act.

On the face of it, this Proviso finds semblance with s.230 of the Communications Decency Act and recent changes proposed to EU E-commerce Directive (“ECD”). This post will make an attempt to explore the genesis of this contradiction in the Indian context, which elsewhere has been dubbed as the ‘Good Samaritan’ paradox. However, the desirability of enabling intermediaries with such teething powers under the garb of this proviso has been left unaddressed for the purposes of this post.

Re-examining Due-Diligence under s.79(2)(c)

Since its introduction in the 2008 Amendment to the IT Act, interpretations on due diligence have undergone a sea of change. Originally envisaged as a self-regulatory mechanism for incorporating global best practices on content-takedown, due diligence obligations have deviated from their original purpose. (see paragraph 49, Standing Committee Report.) Prior to the judgment in Shreya Singhal, protection was also conditional upon intermediaries taking down content upon “obtaining knowledge by itself” under the IT Rules 2011. This contradiction clearly meant that intermediaries had a more active role to play in the content moderation process.

Against this backdrop, the judgment in Shreya Singhal v. Union of India proved to be a watershed moment for intermediaries. Taking note of the inconvenience that could be caused to intermediaries if they were mandated to voluntarily remove content under the IT Rules 2011, the Court read down “actual knowledge” under s.79(3)(b) as well as “obtaining knowledge by itself” under Rule 3(4). (para 117)

This meant two things for intermediaries:

  • Take-down requests could only be issued by courts and appropriate government/agencies (and not from third-parties) and such orders were subject to the threshold under Article 19(2); and  
  • Implicitly, intermediaries could no longer be arm-twisted to voluntarily police content. Liability was now contingent upon non-compliance with the abovementioned order.

Firstly, this left an ambiguity over the moderation of certain categories of content under Rule 3 of the erstwhile IT Rules 2011 that fell beyond Article 19(2) such as copyright and trademark infringing content, or sexually explicit content not rising to public morality threshold. This was both undesirable and impractical. This ambiguity was partially resolved by a Division Bench in MySpace Inc. v. Super Cassettes where the Court harmonised takedowns under the Copyright Act and the IT Act and re-introduced notice and takedown procedure for such claims of copyright infringement. (para 68)

Such exemptions to Shreya Singhal are deemed to be reasonable as courts have exercised utmost restraint in placing general monitoring obligations on intermediaries. For instance, the judgment in MySpace is also notable, particularly because the Court recognised that even a “general knowledge of ‘ubiquitous’ infringement” did not impose a duty on the service provider to monitor or search its service for infringement. (para 66) Following the same, Justice Endlaw decreed against a plea of suo-moto screening of content in Amit Kotak v. Kent Ro (2017) and noted: “all that is required under the provisions of the IT Act and the Intermediary Guidelines, 2011, is for the intermediaries to declare policies that they have put in place, warning users/sellers on their website from undertaking any infringing activities”. (para 40) A recent judgment in Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. has more explicitly recognised that the due diligence requirement is limited to publishing policies for its users along with the removal of the infringing material upon receiving actual knowledge vide a court order as laid down in the Shreya Singhal case. (para 127)

Nevertheless, gatekeepers of the internet have continued to (infamously) moderate content as per their global terms of service determined under the broad contours of Section 230 of the Communications Decency Act (the original Good Samaritan clause), with limited changes carved out in respect to local laws. Facebook India, for instance, requires a court order establishing the unlawfulness of the reported content in matters of defamation, thereby precluding itself from being an arbiter of truth.

Expanding Due Diligence

Almost alongside these judgments that have fleshed out the scope of due diligence under s.79, a different set of opinions have placed systemic obligations on intermediaries by setting up alternatives to the actual knowledge threshold. India follows a vertical approach to intermediary liability wherein different liability regimes under various statutes apply to intermediaries. Following the same, the Supreme Court in Sabu Matthew George v. Union of India adopted the doctrine of auto-blocking under the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PNDT Act) which directed search engines to proactively filter out content relating to pre-natal sex determination activities. The Court also observed that requiring a notice for such takedowns as observed in Shreya Singhal, would “create great hardships where such a takedown was made conditional to a notice”.  Next, in In Re: Prajwala, the Supreme Court, while taking cognisance of the proliferation of content relating to rape and child sexual abuse, recommended parties (including Search Engines and Social Media Platforms) to identify and remove such content with the help of an independent agency. Even the proposed amendment to the Consumer Protection (E-Commerce) Rules, 2020 mandates e-commerce entities to prevent misleading advertisements on the platform and to play an active role in product listings, inter alia.

Drawing inspiration from these rulings, obligations to deploy automated tools removing rape and child sexual abuse-related content have already materialised under the IT Rules 2021 as applicable to significant social media intermediaries. While such obligations may be desirable, their application results in over-censorship and dilutes conditions for safe harbour recognised in Shreya Singhal.

Considering the uptick in proactive moderation, there emerges a need for a balancing act. The existing jurisprudence on passivity limits an intermediary’s function to merely provide a platform for its users and not decide what content is to be published or services to be offered. This limitation also happens to be one of the premises for availing safe harbour immunity.

Intermediaries to remain passive

Sub-clauses (a) and (b) of Section 79(2) specify the technical limitations of intermediaries and are heavily inspired by the EU E-commerce Directive (“ECD”) (refer to Articles 12, 13, 14, 15). However, unlike the ECD, , Section 79(2) is a diluted derivative that recognizes two broad classes of intermediaries – one that merely provide “access” under s. 79(2)(a) and the other that offer “services in addition to access” under s.79(2)(b).

Keeping this distinction in mind, due-diligence obligations as seen above apply horizontally to both classes of intermediaries. The provision also contemplates a degree of ‘passivity’ which arguably becomes a pre-requisite for determining safe harbour immunity. However, the determination of what truly amounts to ‘passive’ becomes clear only by referring to rulings of the CJEU that have bled into Indian jurisprudence on intermediary liability.

While dealing with a question on e-commerce entities, the Delhi High Court in Christian Louboutin SAS v. Nakul Bajaj addressed the linkages between the degree of activity of an intermediary and the subsequent loss of safe harbour provision. The Court cited a decision of the CJEU in Google France SARL, Google Inc. v. Louis Vuitton Malletier SA and noted:

“… in order to limit the liability of an intermediary it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical automatic and passive, pointing to a lack of knowledge or control of the data which it stores.” para 25)

On the same lines, the Court went on to note that safe harbour exemption under s.79(1) was conditional on whether the role played by an operator was active or inactive. As per the ruling, in case an intermediary provided services that entailed optimizing the presentation of the offers or promoting them – where the operator did not play an active role, it could claim exemption. (para 28) It also came out with an indicative list of activities that brought out an intermediary from the ring of safe harbour.

Such a pre-determination of intermediary status was rejected by the Division Bench in Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. holding that the same was subject to trial. (para 122) However, in doing so, the Amazon Court also categorically whittled down the distinction between active and passive intermediaries recognized in Christian Louboutin holding that all that was required for intermediaries to claim safe harbour was to comply with s.79(2)(a) where “access” is provided and s.79(2)(b) where “services” in addition to access is offered. (para 120)

While the Division Bench’s intent in Amazon was largely to pre-empt any pre-determination of intermediary status without a trial, as it was also rejected in Clues Network Pvt. Ltd. Vs. L’oreal, it seems to have misinterpreted the scope and export of s.79(2). The Court in Amazon used the following illustration to make its point:

“… if a potential buyer goes to Amazon’s website and selects a book sold by a seller whose name is indicated on the site, as long as this entire transaction is not controlled by Amazon and the choices, of which the transaction consists, are made solely by the customer, such as, say, the decision to purchase three copies of the book, and these choices are not altered by Amazon, the requirements of Section 79(2)(b) of the IT Act would stand fulfilled.” (para 121)

This illustration itself shows that passivity ought to be inherently observed by intermediaries in order to fulfil the conditions under s.79(2)(b) where an intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission. Thus, it follows that passivity is naturally encompassed within sub-clauses (a) or (b) of s.79(2), as the case may be. The nature of services offered by an intermediary by itself is not determinative of its passivity status, rather the provision contemplates passivity in the mode of offering such services.

When content moderation is a Paradox

The discussion so far reveals that the trend of proactive moderation has already caught pace and at the same time intermediaries are expected to act as passive observers. As a result, platforms face an irreconcilable contradiction, i.e. they are expected to make systemic choices about what users see and say while acting as ‘dumb pipes’. When passivity is one of the prongs for availing safe harbor protection, this leads to the Good Samaritan Paradox. This argument is often used by intermediaries to encourage self-regulation over legislative intervention and to highlight the need for actual control over the knobs of content moderation.

Until the introduction of the proviso under the IT Rules 2021, proactive moderation would have invariably led an intermediary to steer away (at least in theory) from the passive and neutral mode as seen above. With self-regulation, which until now was the “mainstay of cable television and print media”, being applied to regulating content on the web, the proviso would aim to resolve these disincentives arising out of self-regulation.  

The drafters seem to have taken note of comments submitted to MEITY in response to proactive filtration obligations under the Draft Intermediary Rules 2018:

If retained, the provision should include a carve-out that an online platform should not be penalized to the extent it may make voluntary efforts to implement proactive filtering (good Samaritan Provision). This is crucial, as it allows companies to go above and beyond the requirements where appropriate, including voluntary efforts without engaging in pre-censorship.”

Almost alongside these new rules, the paradox within the source ECD is also slated to be cured. It seems as if both jurisdictions have finally realized the flaws within their intermediary framework, i.e. the contradictions that arise with proactive moderation. While the starting point in India is the Shreya Singhal case removing any incentive to voluntarily moderate content, a paradox under the ECD stems from Article 15 that prohibits States from introducing any general monitoring obligations alongside the CJEU rulings (as seen above in Christian Louboutin). With the proposed Digital Services Act (“DSA”) replacing the ECD, one could see these rulings being codified in more explicit terms where “providing ‘active’ services may lead to the loss of immunity if knowledge could be established”. To this, Article 6 of the DSA carves out a similar exemption like the proviso where intermediaries that take voluntary moderation efforts to identify and disable illegal content, would no longer be ‘ineligible’ for claiming safe harbour immunity.

However, certain differences crop up in determining the grant of such exemption. While the proviso under the IT Rules, 2021 seems to provide ‘blanket immunity’ against attributing an ‘active’ status for all removals relatable to Rule 3(1)(b), the DSA on the other hand leaves scope for loss of immunity arising from incompetent moderation.  The DSA specifically sets the threshold for any voluntary moderation to be in ‘good-faith’ and a ‘diligent manner’ and any removal in a less-than-diligent manner would not preclude liability. (Recital 25) Further, it also states that any removal or disabling of access to information should be undertaken concerning freedom of expression. (Recital 22) The only place where either fairness or freedom of expression finds mention under the IT Rules 2021 is where SSMIs are required to undertake proactive moderation. For all other classes of intermediaries, voluntary takedowns remain unguided.

As this article points out, any references to Article 6 of the proposed Digital Services Act as a Good Samaritan clause under s.230 of the Communications Decency Act is misleading. Implicitly, any reference to the proviso as the Good Samaritan clause shall also be disregarded. While, a sword for intermediaries is just as important as a shield, the present sword has been forged to have little or no mercy towards expression on the web. Until certain safeguards are built into the design, the motivation behind striking the Good Samaritan Paradox in the Indian intermediary regime remains unfounded.

Guest Post: The New Pension Rules 2021 and the Freedom of Speech of Government Employees – II

[This is Part Two of a two-part series by Harsh Jain and Eeshan Sonak. Part One may be found here.]


On 31st May 2021, the Central Government notified an amendment to Rule 8(3A) of the Central Civil Services (Pension) Rules, 1972, that restricts retired officials in intelligence/security related organizations from critically commenting on issues relating to current policy that fall within the ‘domain’ of the organizations they served. Failing to seek prior clearance could result in the withdrawal or withholding of the official’s pension. Rule 8 of the CCS Pension Rules relates to officials’ “pension subject to future good conduct.” Previously, ‘good conduct’ meant that the official must not be convicted of a serious crime by a court of law, or be found guilty of grave misconduct. The explanation to the rule clarifies that grave misconduct would mean the disclosure of a secret obtained while holding office under the government, as mentioned in Section 5 of the Official Secrets Act, 1923. The amendment is an attempt to transgress these accepted restrictions, and punish retired officials who use their expertise to criticize the government and point out the flaws in its governance.

In the previous part of this article, we have argued depending on the nature of their work, the government can, in the interests of discipline, efficiency, and confidentiality, impose certain reasonable restrictions on its employees above and beyond those applicable to other citizens. However, what constitutions ‘reasonable restrictions’ is left open for the courts to adjudicate depending on the facts and circumstances of each case. We now argue that the amendment imposes an unconstitutional restriction to free speech for it is unreasonable, disproportionate, vague,  and overbroad. But before moving into these arguments, we wish to make two preliminary submissions that shall have a bearing on the rest of our arguments.

Firstly, pension is not a bounty, charity or a gratuitous payment, but an indefeasible right of every employee. It not an ex-gratia payment that depends on the sweet will of the employer, but a staggered form of payment for the past service rendered. Such was the view taken in D.S. Nakara v. Union of India (1982).

Secondly, restrictions on free speech must pass a higher threshold of reasonability vis-à-vis other rights. Justice Nariman in Shreya Singhal v. Union of India (2015), noted that “restrictions on freedom of speech must be couched in the narrowest possible terms.” Justice V.S. Deshpande, writing extra-judicially, discussed how the liberal wing of US Supreme Court judges advocated a doctrine that the freedom of speech and expression is preferred to the less important rights such as the right to property. According to them, a restraint on the freedom of speech and expression is prima facie unconstitutional unless the state can justify it. The Supreme Court of Colombia has also held that any limitation on freedom of expression “is presumed to be suspect, and therefore must be subject to a strict constitutional analysis” (see also a report by the Special Rapporteur for Freedom of Expression by the Inter-American Commission on Human Rights). Justice Deshpande was of the firm view that these principles are applicable in India as well.

On the subject of the constitutionality of the New Pension Rules, 2021: the Indian jurisprudence when it comes to the Article 19 rights of government employees is clear. Any restrictions of the Article 19(1) rights of government officials must pass the test of reasonableness laid down in Articles 19(2) to 19(6). As we have argued previously, the threshold of reasonableness for restrictions on the rights of government employees might be lesser than that of ordinary citizens and must be decided by the courts depending on the facts and circumstances of each case. It is our submission that the new amendment to Section 8(3A) of the Central Civil Services (Pension) Rules, 1972 does not pass the test of reasonableness laid down in Article 19(2).

In Sakal Papers v. Union of India (1961), the Supreme Court held that the State cannot place restrictions on the freedom of speech and expression in the general interest of the public. Free speech restrictions are permissible only on any of the eight subject matters contained in Article 19(2). Further, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia (1960), the Supreme Court held that the restriction must have a ‘proximate’ or ‘imminent’ connection with one of the grounds under Article 19(2). This ‘proximity’ test was strengthened in Shreya Singhal v. Union of India (2015), where the Supreme Court struck down Section 66A of the Information Technology Act by distinguishing between ‘advocacy’ and ‘incitement’ and holding that only the latter could be constitutionally prohibited (more on the proximity test here).

The unamended Rule 8(3A) which was introduced by way of an amendment in 2008, prohibited the publication of materials without prior clearance only when it related to subjects that might affect the sovereignty and integrity of India, the interests of the State, relations with a foreign State, or might lead to incitement of an offence, i.e., most of the recognised grounds in Article 19(2). The amended Rule 8(3A), however, restricts publication of any material which might fall under the domain of the official’s organization, including any expertise or knowledge gained by virtue of working in that organization. Such a restriction goes beyond the subject matters specified in Article 19(2).

Furthermore, it goes against the doctrine of proportionality. The Supreme Court, in cases like Modern Dental College v. State of Madhya Pradesh (2016) and K.S. Puttaswamy v. Union of India (2018), endorsed a four-limb test of proportionality conceptualised by Aharon Barak, the former President of the Supreme Court of Israel. According to the test, a measure restricting a constitutional right must, first, have a legitimate goal; second, it must be a suitable means of furthering the goal; third, there must not be any less restrictive but equally effective alternative; and fourth, the measure must not have a disproportionate impact on the rights holder. It is the third limb or the “least restrictive measure” test that is of relevance in the present context. It requires that the State assess all possible alternatives and use the least restrictive method in pursuance of its goals. The State must factually demonstrate with evidence that the alternatives do not achieve the goal in a more effective manner than the restriction it proposes or else the restriction would be ruled unconstitutional (previously discussed here). A similar standard was used by the Supreme Court in Internet Mobile Association of India v. Reserve Bank of India (2020).

The purported aim of the amendment to Rule 8(3A) was to prevent sensitive information from being put in the public domain by retired intelligence/security officials. As discussed earlier, the unamended rule already prevented the publication of any material pertaining to the security of the State, relations with a foreign State, interests of the nation, etc. Such a limited restriction balanced the right to freedom of speech and expression of the officials and the social importance of effectively restricting such a right. The new rule puts a blanket restriction on the publication of any material within the domain of an official’s organization. The State must factually demonstrate with evidence that the new rule protects sensitive information more effectively than the alternative previously in place. In case it fails to do so, the rule must be held to be unconstitutional for being disproportionate.

The amendment also suffers from the vices of vagueness, overbreadth, and of producing a chilling effect. As was held in Chintaman Rao v State of MP (1950), “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In State of Bombay v. F.N. Balsara (1951), the Court struck down sections of the Bombay prohibition law that criminalized “frustrating or defeating the provisions of the Act” by, inter alia, noting that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” This is believed to be the origin of the vagueness doctrine and also the first time the Supreme Court gave a nod to the concept of overbreadth (see more on the roots of vagueness here).

Similarly, in Kartar Singh v. State of Punjab (1994), the Court held that “laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” and said that if the provisions are not clearly defined, the enactment is void for vagueness. Furthermore, the Supreme Court has incorporated the concept of ‘chilling effect’ into Indian jurisprudence through cases such as Kameshwar Prasad, Khushboo v. Kanniammal (2010), and most recently in Shreya Singhal, where it applied all the three doctrines of vagueness, overbreadth, and chilling effect to strike down Section 66A of the IT Act. It said: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total… therefore, [it would] have to be struck down on the ground of overbreadth.”

The newly amended rule fails to precisely define the expression “domain of the organization” and gives it an open-ended definition: “including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.” As was the case with Section 66A, the amendment is likely to be misused in selectively censoring any opinions that portray the government in bad light. Alternatively, it would result in self-censorship of retired officials as, in the words of Lt. Gen. H.S. Panag (retd.), “which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored?

An article written by Siddharth Varadarajan that interviews retired officials captures the sheer overbreadth of the new rules. Varadarajan writes that the amendment would prohibit former R&AW officials from writing on foreign policy, or former Intelligence Bureau officials from writing on communal violence or mishandling of internal security issues or even domestic politics since the IB’s domain includes those. Retired officials, by their years of experience, are best suited to comment on policy matters and convey this information to the general public. They are equipped with the requisite knowledge to call out the government’s mishandling of issues or to suggest ways of improvement through open letters. The amendment prohibiting them from expressing themselves on areas in which they have special expertise is clearly hit by the test of overbreadth.

For these reasons, the courts must recognize that the amendment is unreasonable, disproportionate, vague, and overbroad, and must therefore declare it to be unconstitutional.

Guest Post: The New Pension Rules 2021 and the Freedom of Speech of Government Employees – I

[This is a guest post by Harsh Jain and Eeshan Sonak.]


In an earlier post on this blog, Gautam Bhatia discussed in depth the right to free speech of government employees. The post was written in 2016 in the backdrop of a proposed change to the All India Service (Conduct) Rules, 1968, which would prohibit government officials from ‘criticising’ the government on social media. Five years later, we now see an amendment to the Central Civil Services (Pension) Rules, 1972, which goes even further in its effect: it prohibits retired officials in intelligence/security related organizations from publishing anything that falls within the ‘domain’ of the organization they served. A failure to seek prior clearance can lead to an official’s pension being withheld or withdrawn.

In this article, we present a challenge to the constitutionality of the amendment on the anvil of Article 19(1)(a), by examining whether, and to what extent, it is permissible to place greater restrictions on the freedom of speech and expression of retired officials vis-à-vis other citizens. To do so, we trace the decisions of the Supreme Court on the constitutional rights of government employees, and somewhat differ from Bhatia in our conclusion.

Bhatia writes that “in its relationship with its employees, the government assumes two faces: as an employer, with the power to enforce discipline and unity, and as the State, which must respect fundamental rights. The scope of government employees’ rights to freedom of expression and association, therefore, depends upon which of those faces the courts have considered to be the dominant one, and to what extent.” While adhering to this framework, we argue that unlike the narrative of a vacillating Supreme Court presented by Bhatia, its decisions can be read as being consistent in substance and reasoning, though questionable in their conclusions.

Constitutional Rights of Government Employees

The Supreme Court decided on the validity of terms of service that restrict government employees’ rights for the first time in P Balakotaiah v. Union of India (1957). A few railway employees, who had been terminated for engaging in “subversive activities” by organizing a general strike in association with communists, challenged their termination before the Supreme Court as a violation of their fundamental right to form associations. A Constitution Bench of the Supreme Court upheld their termination and stated that the orders of termination:

… do not prevent them from continuing to be communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Article 311, no infringement of any of their constitutional rights.” As Bhatia puts it, the underlying premise behind the Supreme Court’s refusal to invoke Article 19(1)(c) was that  “since there is no antecedent fundamental right to government employment, the government is free to make employment conditional on the requirement that employees do not associate with communists.

Five years later, in 1962, two Constitution Benches of the Supreme Court took a radically different approach from Balakotaiah. In Kameshwar Prasad v. State of Bihar the Court struck down a rule that prohibited government servants from participating in demonstrations or strikes concerning their conditions of service. The Court noted that entering government service does not disentitle a person from claiming the freedoms guaranteed to every citizen, and therefore, any restriction on Article 19(1)(a) or (c) would have to satisfy the reasonableness test under Articles 19(2) or (4) respectively. It held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the rule was overbroad and hence, void. Similarly, a few months later in O.K. Ghosh v. E.X. Joseph, the Supreme Court struck down a rule prohibiting government servants from joining associations not recognized by the government.

However, in 1998, a two-judge bench of the Supreme Court yet again changed tack. In M.H. Devendrappa v. Karnataka Small State Industries, the Court upheld the dismissal of an employee on the basis of a rule which prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation.” The Court reasoned that “a rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a).” To this extent, as Bhatia notes, it is an incorrect position of law as the Supreme Court, in Bennett Coleman v. Union of India, abandoned the “object and form” test for the violation of fundamental rights in favour of the “effects” test.

Bhatia then goes on to discuss how the Court in Devendrappa wriggled out of the difficulty when faced with the “conflicting precedents” in Balakotaiah and Kameshwar Prasad/O.K. Ghosh. Describing the complexity involved, Bhatia says that “Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotaiah, and were then themselves incorrectly interpreted by Devendrappa, giving us, at the end of the day, an initial Constitution Bench decision and a later two-judge bench decision on one side, and two Constitution Bench decisions in the middle on the other.”

It is this part of Bhatia’s criticism that we disagree with, for reasons that will shortly become clear. To clarify, we do not seek to defend Balakotaiah or Devendrappa, and in fact, believe – as Bhatia points out – that they are strewn with glaring errors. Instead, we seek to focus on those aspects of the judgments that lie at the very core of the constitutional rights of government employees and argue that Kameshwar Prasad and Balakotaiah are not entirely “conflicting precedents” and that there is scope to reconcile them when looking at their core aspects. Amidst the numerous differences in reasoning and conclusions, there runs a commonality that is consistent through all four judgments. The following three principles consistently emerge from them:

  1. Government employees cannot be said to form a class apart to whom the rights guaranteed by Part III do not, in general, apply.
  2. Depending on the nature of their work, duties they are required to discharge, and information they are privy to, reasonable restrictions above and beyond those applicable to other citizens may be placed on Government employees in the interest of discipline, efficiency, and confidentiality.
  3. The question as to what constitutes ‘reasonable restrictions’ is subjective, and is left open for the courts to determine on a case-by-case basis.

So far as the first principle is concerned, Kameshwar Prasad (para 18) and O.K. Ghosh (para 11) unequivocally say in no uncertain terms that government servants can claim fundamental rights. We believe that this principle is also implicit in Balakotaiah and Devendrappa. Balakotaiah took the view that the appellant’s rights under Article 19(1)(c) have not been infringed since they can continue to be communists or trade unionists, but they have no fundamental right to be continued in employment by the State. Whatever be the correctness of this view, there is, arguably, a tacit recognition that the State cannot infringe upon the fundamental rights of government employees.  

Now coming to Devendrappa, we believe that its emphasis and repeated re-iteration of the second principle impliedly affirms the first principle. Devendrappa focuses on the reasonableness of the restrictions and says:

Proper exercise of rights may have, implicit in them, certain restrictions. The rights must be harmoniously construed so that they are properly promoted with the minimum of such implied and necessary restrictions. In the present case, joining government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduce necessary for the proper discharge of functions as a government servant. That code cannot be flouted in the name of other freedoms. Of course, the courts will be vigilant to see that the code is not so widely framed as to unreasonably restrict fundamental freedom. But a reasonable code designed to promote discipline and efficiency can be enforced by the government organisation in the sense that those who flout it can be subjected to disciplinary action.

Contrary to Bhatia’s claim that the Court in Devendrappa tried to wriggle out of the difficulty of “conflicting precedents,” it highlighted Kameshwar Prasad and O.K. Ghosh as shining examples of how the courts have made sure that the impingement on the fundamental rights of Government employees is minimal. It concluded that “a proper balancing of interests of an individual as a citizen and the right of the State to frame a code of conduct for its employees in the interest of proper functioning of the State, is required.In our opinion, this iteration alone captures all three principles that we culled out.

Kameshwar Prasad and O.K. Ghosh also advance a similar proposition. Kameshwar Prasad says that “if the rule had confined itself to demonstrations of a type which would lead to disorder, or which would fall under the other limiting criteria specified in Article 19(2) the validity of the rule could have been sustained.” This means that government employees may have special rules or restrictions as long those restrictions fall within Article 19(2). If certain actions by government employees may lead to disorder, which if done by ordinary citizens would not lead to the same, then those rules can be sustained under a 19(2) enquiry. Kameshwar Prasad then goes on to give specific two instances where such rules would be sustained: that of an income tax officer mandated to maintain secrecy of documents under the Income Tax Act and an election officer mandated to do the same under the Representation of the People Act. The Court held that rules regulating the use of information obtained by such employees in the course of their duties by virtue of their official position do not infringe the right to free speech.

Bhatia argues that the very narrowness and specificity of these examples directly contradict the broad interpretation that Devendrappa placed upon Kameshwar Prasad, namely that “fundamental rights challenge could be avoided on the ground of requiring proper discharge of duties by government servants.” We believe that Devendrappa did not hold that a fundamental rights challenge could be avoided on this ground, but that it would have to be tested on a different threshold of ‘reasonableness’ by taking into consideration the interests of discipline, efficiency, and confidentiality in the discharge of their duties.

Similarly, O.K. Ghosh also held that “there can be no doubt that government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst government employees and their efficiency may in a sense, be said to be related to public order.” It added, however, that “a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct.” In the particular facts of that case, the Court struck down the law as unconstitutional holding that “it is difficult to see any direct or proximate or reasonable connection between the recognition by the government of the association and the discipline amongst, and the efficiency of, the members of the said association.”

Thus, the first two principles establish that owing to the nature of their work, which may entail consuming sensitive information, government employees can be subjected to stricter regulations vis-à-vis other citizens. It is also established that these regulations must be ‘reasonable’ in line with Article 19(2). What is left unanswered is the question of what constitutes ‘reasonable restrictions.’ We believe that it is this question that the courts have answered inconsistently, if at all. Balakotaiah did not undertake any reasonability enquiry and went too far in holding that the government can terminate its employee even for the proper exercise of her fundamental right. Devendrappa too, in our opinion, erred in upholding the dismissal on the ground of proper functioning of the government organisation. In contrast, we believe that Kameshwar Prasad and O.K. Ghosh reflect the correct exposition of law. Regardless, an undeniable observation that arises from this analysis is that the courts have adopted different standards of reasonability when testing the constitutionality of the law or when applying it to different cases.

Hence, we conclude that what constitutes a reasonable restriction in the special circumstances of government employees is left undecided. It is up to the discretion of the courts to determine whether a restriction is reasonable after considering the particular factors of a given case like the nature of employment and the extent to which the law restricts one’s fundamental right. It is this subjectivity that we grapple with in the next part of this article, where we present a challenge to the constitutionality of the amendment to the Central Civil Services (Pension) Rules, 1972. We call this amendment the ‘New Pension Rules, 2021’ because of how drastically it expands the requirement of good conduct after retirement; so much so that it is not a stretch to say that it introduces a new code in itself for availing pension.

However, before we proceed to discuss the New Pension Rules, there remains unaddressed one last argument by Bhatia: the doctrine of unconstitutional conditions. Bhatia places the incipience of this doctrine into Indian jurisprudence in the case of Re Kerala Education Bill (1958). The doctrine prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights (discussed in greater depth in another post by Bhatia; available here). Bhatia argues that this pronouncement impliedly overruled Balakotaiah because though there is no antecedent right to government employment, making one’s employment conditional upon her abstaining from exercising her constitutional rights to free speech and association would no more be permissible.

While we agree that the reasoning advanced in Balakotaiah would not stand the test of the unconstitutional conditions doctrine, we believe that it is important to clarify that this doctrine cannot be held as absolute, and is itself subject to implied limits of reasonable restrictions. Since the unconstitutional conditions doctrine originated in the United States, let us see some of the US Supreme Court decisions relating to this doctrine.

Professor Emeritus Thomas McCoy of Vanderbilt University discusses the limitations and proper application of the unconstitutional conditions doctrine. He says that if a restriction is reasonably necessary for the effective performance of the contract, the unconstitutional conditions doctrine will not apply, and the court will uphold the contractual restriction on speech. For example, a position with the Central Intelligence Agency is routinely conditioned on an individual’s acceptance of significant restrictions on her freedom to speak about classified information to which she will have access. In Snepp v. United States (1980), the Supreme Court upheld the speech-restrictive condition in the CIA employment contract saying that the unconstitutional conditions doctrine will not apply since such restrictions are essential to the effective performance of the CIA agent’s duties. Similarly, in Rust v. Sullivan (1991), the Court refused to apply the doctrine holding that a government employee engaged in family counselling using government-specified speech, contractually agrees to forego the advocacy of her own viewpoints during the counselling time. However, the Court has also ruled that the Government cannot discourage unfavourable speech unrelated to contract performance. In Elrod v. Burns (1976), the Court held that a city government cannot offer employment as a police officer on the condition that the employee refrains from making speeches in her spare time that are critical of the mayor’s political views.

In India as well, secrecy and non-disclosure are essential requirements of certain positions. Kameshwar Prasad itself gives two such positions: income tax officers and election officers. Thus, we see that it is permissible to restrict free speech to the extent it involves classified information. Therefore, the doctrine of unconstitutional conditions does not affect the application of the three principles we culled out as commonalities in all four judgments.

(Part Two to follow.)

Guest Post: RTI and Transparency in Electoral Bonds

[This is a guest post by Siddhanth Sharma and Ashwin Vardarajan.]


Background

On 21st December 2020, the Central Information Commission (‘CIC’), a body authorised under the Right to Information Act (‘RTI Act’) to receive and inquire into the complaints of RTI applicants, dismissed an appeal from an application which sought, inter alia, the disclosure of the details of those who made political donations through the Electoral Bonds Scheme (‘EBS’), which was introduced under the Finance Act, 2017 (‘Finance Act’). The CIC held that disclosure of such information would amount to an infringement of Section 8(1)(e) and 8(1)(j) of the RTI Act. Further, they held that there was no ‘larger public interest’ involved and that the applicant was not justified in interfering with the ‘right to privacy’ of the donors, without really explaining how.

Subsequently on 26th March 2021, the Supreme Court of India (‘SC’), refused to stay the sale of electoral bonds that would be issued between April 1 and April 10, 2021, in the backdrop of elections in four Indian states. 

Earlier, donors and donees were mandated to reveal the details of political donations made and received under the Companies Act, 2013 (‘Companies Act’) and Representation of People’s Act, 1951 (‘RP Act’), respectively; however, this mechanism is not available anymore, after the Finance Act amended them. The efficacy of the RTI Act too, in culling out such information, has been compromised through the CIC’s formulaic December order. While the CIC’s and SC’s rulings are based on different legal questions and facts, there is an underlying commonality between them: both establish in definite terms that there is no public interest in revealing details of anonymous political donors under the EBS and that the apprehensions about illicit political funding are totally misconceived.

In this essay, we argue that the disclosure of information on political donations, via the EBS, is possible under the RTI in ‘larger public interest’. We thereafter conclude by briefly reading the effects of the CIC’s and SC’s orders together.  

Disclosure in ‘Larger Public Interest’ under the RTI Act

The right to information is traceable not only to the RTI Act, but also to Article 19(1)(a) of the Constitution, as has been observed by the SC in State of U.P. v. Raj Narain (1975). The RTI Act prescribes a formal process to extract information from the authorities subjected to it. Section 4(a) of the RTI Act states that all public authorities shall “maintain all its records … in a manner and form which facilitates the right to information”, while Section 8 lists down a number of exceptions whereby the information sought may be exempted on narrowly worded grounds. Sections 8(1)(e) and 8(1)(j) exempt disclosure of information held in a fiduciary capacity, and if it is personal information, respectively. However, the Central Public Information Officer (‘CPIO’), or a competent authority under the RTI Act, may disclose the information if a ‘larger public interest’ exists.  

The RTI Act neither defines the expression ‘larger public interest’ nor lays down any parameters to be followed by the deciding authority in interpreting it. However, recently, the SC’s ruling in CPIO v. Subhash Chandra(2019) gave pertinent insights on how such a ‘larger public interest’ is to be determined by an authority under the RTI Act. According to the SC, a larger public interest would be satisfied if the disclosure relates to a matter of public concern (para.71). A matter of public concern includes matters which are integral to free speech and expression and entitle everyone to seek the truth and comment fairly about. The SC, further, had cited Union of India v. Association of Democratic Reforms (2002), wherein judicial directions had been issued for the disclosure of information relating to the personal assets, educational qualifications and criminal antecedents of election candidates, despite the same being personal and confidential information. Such a disclosure, the Court had held, was justified in light of the ‘larger public interest’ of having an informed electorate, fair elections and a dialectal democracy. The SC further noted that a larger public interest would exist if the disclosure would contribute to debates on inefficiency or wrongdoing, and the accountability of officials. Even though such debates may even ‘offend, shock or disturb’, the court/information officer, must not interpret the effect of the disclosure according to their personal value judgment.  (see, paras.99-101).

While Sections 8(1)(e) and 8(1)(j) of the RTI Act guarantee protection of informational privacy of individuals, the SC, in Subhash Chandra, observed that the right to privacy is not absolute and can be infringed, provided that the infringement adheres to the test of proportionality laid down in Puttaswamy v. Union of India (2017). Accordingly, an authority, while dealing with challenges under Sections 8(1)(e) and 8(1)(j) must see the following before disclosing private information in ‘larger public interest’: (Puttaswamy, para.180)

  1. There must be ‘law’ enabling the measure violating someone’s privacy; 
  2. Such violation must be pursuant to a legitimate aim;
  3. The measure adopted under the law must have a reasonable nexus with the legitimate aim; and
  4. The measure must be the least-intrusive of the right to privacy.

After applying these prongs to each and every category of information sought in an application, the deciding authority must cumulatively assess,  and after giving precedence to the right to information, disclose through a cogently reasoned order whether the disclosure is justified (on a case-to-case basis). Keeping this test in mind, we shall see whether disclosure of information of donors and donees under the EBS is justified under the RTI Act.

Anonymity of Electoral Bonds and Public Interest

In a multi-party democracy like ours, political parties perform significant public functions. As non-state actors, they act as pressure groups influencing Governmental policies. They also enjoy tax exemptions and substantial indirect financing through the Government exchequer. Once elected, they hold the power to decide the functions of the Government and its various policies, which directly affect the lives of billions. Thus, public interest operates against political parties too and citizens have a right to know about their activities, including the sources of their campaign funding. This necessity led the CIC to extend the RTI Act to political parties in Anil Bairwal v. Parliament of India (2013). 

In the midst of such demands for greater financial transparency, the Government introduced the EBS in the Parliament, claiming that that it would formalise political donations and maintain the purity of free and fair elections. The EBS allows political parties to purchase bonds in denominations ranging from Rs.1,000 to Rs. 1 Crore, issued by specified branches of the State Bank of India (‘SBI’), available for a period of 10 days at the beginning of every quarter of a year. The EBS is notified by the Central Government under Section 31(3) of the Reserve Bank of India Act, 1934. Any individual or company can purchase such bonds within 15 days of being issued. However, the donor’s identity is kept anonymous and only known to the SBI. The EBS is a popular source of donation amongst political parties. Between March 2018 and October 2020, bonds worth Rs.6492.43 Crore were purchased.

The value of money power in elections is not new. The 255th Law Commission Report has highlighted that political donations enable big donors to secure favourable policies from legislators and also mislead and align public interest with their vested motivations. Democracy becomes a bidding process, where the highest contributor gets to influence the policies affecting billions (pp.7-11). In the midst of it all, hefty campaign donations translate to financial superiority in elections, which enables political solicitation, advertising and publicity and eventually increases the chance of winning elections. Furthermore, the EBS also allows funding from foreign persons and companies, thereby making India’s electoral process prone to external influence. Identifying who funds political parties would ensure an informed electorate. Voters be enabled to conduct thorough fact-check on the antecedents of parties, and elect only those to power whom they believe possess and incorruptible sense of public duty. 

The arguments of anti-disclosure proponents – that the identity of the donors must be kept private – are mistaken. Section 29C of the RP Act and Section 182(3) of the Companies Act had anyways required disclosure of such information in the financial statements of the donee and donor, respectively. Although formalising the process of political funding through the EBS is welcome, there were no arguments presented by the Government as to why the identity of the donors must be protected. However, for the sake of an argument, let us assume that privacy of donors must be protected. By applying the test of proportionality to justify the violation of the donor’s right to privacy, we see that the object sought to be achieved (i.e., electoral transparency, in line with the preceding paragraph) finds a rational nexus with the legitimate action (i.e., revealing the donor’s identity) through a valid law (i.e., the RTI Act) in the least intrusive way (merely revealing the identity of the donors, which happened earlier too). Since the proportionality test squarely applicable, and since public interest evidently outweighs the right of privacy of the donors, it would be justified to disclose the identity of the donors in ‘larger public interest’ under Sections 8(1)(e) and 8(1)(j) of the RTI Act. The CIC’s order, unfortunately, did not discuss any of the points enumerated above, and thus was evidently deficient in its reasoning.

Conclusion

We now briefly discuss the SC’s refusal to stay the EBS. The SC, in its order, had an (inutile) conversation on how persons seeking information on funds received by political parties under the EBS can cull out the information through the financial statements of the corporate-donors and party-donees. Thus, they felt that the existing scheme was sufficiently transparent, and it was not as though the transactions were behind “iron curtains”, “incapable of being pierced”. However, the SC did not consider the amendments to Section 29C(b) of the RP Act, and Section 182(3) of the Companies Act vide the Finance Act, whereby corporate-donors and political parties are not obligated to disclose such information to either the registrar of companies or the Election Commission, respectively. Ironically, the SC also noted that the only grounds for disclosing of the donors’ identity is when it is “demanded by a competent court or upon registration of a criminal case by any law enforcement agency” (para.18). Thus, they assumed that the filing of annual incomes by donor-companies and other financial statements by political parties would enable a person to cull out information on party funding through a ‘match the following’ without even considering the opaque changes introduced the Finance Act. 

Such loose reasonings manifesting in a formal SC Order, tagged alongside the CIC’s ruling, leaves very little, or no room for someone to know the identity of those who donate considerable sums of money to political parties, perhaps even in return for political favours. That is sincerely against the right to information guaranteed to all citizens, and imperils the electoral process in India of becoming a corporate-run show. The CIC’s order is a dangerous precedent, and the position of law must be obverted in the interest of a truly transparent, fair and free electoral process.

Notes From a Foreign Field: The European Court of Human Rights on Russia’s Website Blocking [Guest Post]

[This is a guest post by Gurshabad Grover and Anna Liz Thomas.]


From PUBG to TikTok, online services are regularly blocked in India under an opaque censorship regime flowing from section 69A of the Information Technology (IT) Act. Russia happens to have a very similar online content blocking regime, parts and processes of which were recently challenged in the European Court of Human Rights (‘the Court’). This blogpost summarises the human rights principles applied by the Court to website blocking, and discusses how they can be instructive to petitions in the Delhi High Court that challenge arbitrary censorship in India.

Challenges to Russia’s Website Blocking Practices

On 23 June 2020, the Court delivered four judgements on the implementation of Russia’s Information Act, under which content on the internet can be deemed illegal and taken down or blocked. Under some of these provisions, a court order is not required, and the government can send a blocking request directly to Roskomnadzor, Russia’s telecom service regulator. Roskomnadzor, in turn, requests internet service providers (ISPs) to block access to the webpage or websites. Roskomnadzor also notifies the website owner within 24 hours. Under the law, once the website owner notifies the Roskomnadzor that the illegal content has been removed from the website, the Roskomnadzor verifies the same and informs ISPs that access to the website may be restored for users.

In the case of Vladimir Kharitonov, the complainant’s website had been blocked as a result of a blocking order against another website, which shared the same IP address as that of the complainant. In Engels, the applicant’s website had been ordered by a court to be blocked for having provided information about online censorship circumvention tools, despite the fact that such information was not unlawful under any Russian law. OOO Flavius concerned three online media outlets that had their entire websites blocked on the grounds that some of their webpages may have featured unlawful content. Similarly, in the case of Bulgakov, the implementation of a blocking order targeting extremist content (one particular pamphlet) had the effect of blocking access to the applicant’s entire website. In both the cases of Engels and Bulgakov, where court proceedings had taken place, the proceedings had been concluded inter se the Prosecutor General and server providers, without the involvement of the website owner. In all four cases, appeals to higher Russian courts had been summarily dismissed. Even in those cases where website owners had taken down the offending content, their websites had not been restored.

The Court assessed the law and its application on the basis of a three-part test on whether the censorship is (a) prescribed by law (including foreseeability and accessibility aspects of the law), (b) necessary (and proportionate) in a democratic society, and (c) pursuing a legitimate aim.

Based on the application of these tests, the Court ruled against the Russian authorities in all four cases. The Court also held that the wholesale blocking of entire websites was an extreme measure tantamount to banning a newspaper or a television station, which has  the collateral effect of interfering with lawful content. According to the Court, blocking entire websites can thus amount to prior restraint, which is only justified in exceptional circumstances.

The Court further held that procedural safeguards were required under domestic law in the context of online content blocking, such as the government authorities: (a) conducting an impact assessment prior to the implementation of blocking measures; (b) providing advance notice to website owners, and their involvement in blocking proceedings; (c) providing interested parties with the opportunity to remove illegal content or apply for judicial review; and (d) requiring  public authorities to justify the necessity and proportionality of blocking, provide reasons as to why less intrusive means could not be employed and communicate the blocking request to the owner of the targeted website.

The Court also referenced an earlier judgment it had issued in the case of Ahmet Yildirim vs. Turkey,  acknowledging that content creators are not the only ones affected; website blocking interferes with the public’s right to receive information.

The Court also held that the participation of the ISP as a designated defendant was not enough in the case of court proceedings concerning blocking requests, because the ISP has no vested interest in the proceedings. Therefore, in the absence of a targeted website’s owner, blocking proceedings in court would lose their adversarial nature, and would not provide a forum for interested parties to be heard.

Implications for India

The online censorship regime in India is similar to Russian terms of legal procedure, but perhaps worse when it comes to  the architecture of the law’s implementation. Note that for this discussion, we will restrict ourselves to government-directed blocking and not consider court orders for content takedown (the latter may also include intellectual property infringement and defamatory content).

Section 69A of the Information Technology (IT) Act permits the Central Government to order intermediaries, including ISPs, to block online content on several grounds when it thinks it is “necessary or expedient” to do so. Amongst others, these grounds include national security, public order and prevention of cognisable offences.

In 2009, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘blocking rules’) were issued under the Act. They lay out an entirely executive-driven process: a committee (consisting entirely of secretaries from various Ministries) examines blocking requests from various government departments, and finally orders intermediaries to block such content.

As per Rule 8, the chairperson of this committee is required to “make all reasonable efforts identify the person or intermediary who has hosted the information” (emphasis ours) and send them a notice and give them an opportunity for a hearing. A plain reading suggests that the content creator can then not be involved in the blocking proceedings. Even this safeguard can be circumvented in “emergency” situations as described in Rule 9, under which blocking orders can be issued immediately. The rules ask for such orders to be examined by the committee in the next two days, where they can decide to continue or rescind the block.

The rules also task a separate committee, appointed under the Telegraph Act, to meet every two months to review all blocking orders. Pertinently, only ministerial secretaries comprise that committee as well.

These are the limited safeguards prescribed in the rules. Public accountability in the law is further severely limited by a requirement of strict confidentiality (Rule 16) of blocking orders. With no judicial, parliamentary or public oversight, it is easy to see how online censorship in India operates in complete secrecy, making it susceptible to wide abuse.

When the constitutionality of provision and the blocking rules was challenged in Shreya Singhal v. Union of India, the Supreme Court was satisfied with these minimal safeguards. However, it saved the rules only because of two reasons. First, it noted that an opportunity of a hearing is given “to the originator and intermediary” (emphasis ours: notice how this is different from the ‘or’ in the blocking rules). It also specifically noted that the law required reasoned orders that could be challenged through writ petitions.

On this blog, Gautam Bhatia has earlier argued that the judgment then should be read as obligating the government to mandatorily notify the content creator before issuing blocking orders. Unfortunately, the reality of the implementation of the law has not lived up to this optimism. While intermediaries (ISPs when it comes to website blocking) may be getting a chance to respond, content creators are also almost never given a hearing. As we saw in the European Court’s judgment, ISPs do not have any incentive to challenge the government’s directions.

Additionally, although the law states that “reasons [for blocking content are] to be recorded in writing”, leaked blocking orders suggest that even ISPs are not given this information. Apart from the opacity around the rationale for blocking, RTI requests to uncover even the list of blocked websites have been repeatedly rejected (for comparison, Roskomnadzor at least maintains a public registry of websites blocked in Russia). This lack of transparency and fair proceedings also means that entire websites may be getting blocked when there are only specific web pages on that website that serve content related to unlawful acts.

When it comes to the technical methods of blocking, the rules are silent, leaving this decision to the ISPs. While a recent study by the Centre for Internet and Society showed that popular ISPs are using methods that target specific websites, there are some recent reports that suggest ISPs may be blocking IP addresses too. The latter can have the effect of blocking access to other websites that are hosted on the same address.

There are two challenges to the rules in the Delhi High Court, serving as opportunities for reform of website blocking and content takedown in India. The first was filed in December 2019 by Tanul Thakur, whose website DowryCalculator.com (a satirical take on the practice of dowry) was blocked without any notice or hearing. Tanul Thakur was not reached out to by the committee responsible for passing blocking orders despite the fact that Thakur has publicly claimed its ownership multiple times, and has been interviewed by the media about the website. When Thakur filed a RTI asking why DowryCalculator.com was blocked, the Ministry of Electronics cited the confidentiality rule to refuse sharing such information!

This month, an American company providing mobile notifications services, One Signal Inc., has alleged that ISPs are blocking its IP address, and petitioned the court to set aside any government order to that effect because they did not receive a hearing. Interestingly, the IP address belongs to a popular hosting service provider, which serves multiple websites. Considering this fact and the lack of transparency in blocking orders, one may question whether One Signal was the intended target at all! The European Court’s judgment in Vladimir Kharitonov is quite relevant here: ISPs should not be blocking IP addresses that are shared amongst multiple websites, because such a measure can cause collateral damage, and make other legitimate expression inaccessible.

Given the broad similarities between the Indian and Russian website blocking regimes, the four judgements by the European Court of Human Rights will be instructive to the Delhi High Court. Note that section 69A is used for content takedown in general, i.e. censoring posts on Twitter,  not just blocking websites): the right to hearing must extend to all such content creators. The principles applied by the European Court can thus provide for a more rights respecting foundation for content blocking in India for the judiciary to uphold, or for the legislature to amend.