Fuzzy law, Unclear Jurisprudence, Trampled Rights

Context: The legal regime that enables the government to block websites needs urgent reform.

Legal structure of Section 69A of the Information Technology (IT) Act: with regards to blocking of websites

• Scope: Government has the power to issue directions to intermediaries for blocking access to any information, on account of the sovereignty and integrity of India, national security, or public order.

• Punishment: A jail sentence for up to 7 years for intermediaries who fail to comply - Section 69A (3)

• Procedure for blocking: Based on “Blocking Rules” issued by  the government in 2009, which includes:
  • Regular review by government committees.
  • Maintaining the confidentiality of requests and complaints

Issues with the legal structure: 

• Lack of transparency: Due to the confidentiality requirement, users will not be aware of the reason for blocking their account and hence will be in no position to challenge it (which is a constitutional right).
• Lack of procedural safeguards: Like there is no opportunity for a hearing to affected parties and no need for reasoned orders.
  • Rather than having to go to court and prove a violation even prima facie of law, the government can simply direct intermediaries to block content.
  • This amounts to a violation of free speech rights and right to due process, which was also the case with Section 66A of the IT Act that was struck down by the Supreme Court in Shreya Singhal case.

Way forward: To make Section 69A of the IT Act more reasonable.

• Bring in Transparency: By making it mandatory for the government to furnish blocking orders along with reasons to affected parties. (as was done for Section 66A in Shreya Singhal case)

• Enable fair hearing: By prohibiting government power to directly order intermediaries to block access to online information (such power shall remain in emergency cases)
  • Bringing in a judicial process with adequate opportunity for affected parties to defend themselves.