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Jan 23, 2023

By: Venkatesh Nayak

A controversy of considerable magnitude that can impact upon its relations with the United Kingdom, is brewing over the Government of India's recent decision to block public access to a two-part documentary series produced by the BBC on the communal violence that ravaged Gujarat in 2002. A couple of days ago, the official spokesperson of the Ministry of External Affairs reportedly dismissed BBC's documentary film  as "a propaganda piece" that smacked of a "continuing colonial mindset" and questioned the agenda behind it. News of the decision to block access to the BBC documentary film was tweeted by the Senior Advisor, Ministry of Information and Broadcasting (MoI&B) on 21 January, 2023. Till date the blocking order issued by the competent authority or even a press release about this action is not available on the website of MoI&B or that of the Press Information Bureau (PIB). Since December 2021, it was common practice for MoI&B to publish press releases with regard to the orders issued to block content on social media and digital platforms. However, in the case of the BBC's documentary film on Gujarat that good practice appears to have been given the go by.

Before this controversy hit the headlines, three interventions were made under The Right to Information Act, 2005 (RTI Act) in December, 2022 to probe the degree of transparency with regard to the blocking orders issued under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules) notified under the Information Technology Act, 2000 (IT Act). The MoI&B Senior Advisor's tweet makes it amply clear that the order to block the BBC documentary was issued using the "emergency powers" under these 2021 Rules.

The result of the three RTI interventions at the time of writing, is given below:

1) MoI&B has invoked the national security exemption under Section 8(1)(a) of the RTI Act, to refuse to publish:

     a) the blocking orders issued by the competent authority; 

     b) the materials which form the basis of the Inter-Departmental Committee's decision to block content on digital and social media platforms; and

     c) the minutes of the Review Committee which confirms such blocking orders- all on the ground that they are 'confidential' and therefore exempt from disclosure under Section 8(1)(a) of the RTI Act; and

2) Despite the publication of the 2021 Rules almost two years ago, the Union Government has not tabled them in Parliament. Such tabling is a mandatory requirement under Section 82(3) of the IT Act.

What are the 2021 Rules?

Before narrating the RTI interventions, it is important to understand the 2021 Rules which form the context in which these interventions were made. 

Parliament incorporated Section 69A in the IT Act through an amendment in 2009 to empower the Union Government or any of its specially authorised officers to direct any Government agency or intermediary to block public access to content generated, transmitted, received, stored or hosted in any computer resource. the reasons for blocking access are: in the interest of the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to the preceding grounds. Reasons for issuing such blocking orders must be recorded in writing. In October, 2009, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public), Rules were notified creating a mechanism and laying down procedures for the Department of Information Technology to implement Section 69A as and when required.

With the expansion of social media platforms and digital media outlets which have become a major source of news and information to the digitally literate segments of society in India. The Union Government notified the 2021 Rules under the Information Technology Act to regulate this sector. These Rules prescribe a code of ethics for, and due diligence standards and procedures to be observed by, significant social media intermediaries (SSMI). This has been done to ensure that content which is, among other things, pornograhpic, paedophilic, racially or ethnically objectionable in nature, or which violates individual privacy or causes harassment on the basis of gender, or infringes specified intellectual property rights, or peddles patently false or untrue information or is harmful to children, is not made available on such platforms for long. These Rules also establish a multi-layered self-regulatory mechanism for redressing grievances of any person regarding the content they host or store or publish or transmit. Additionally, these Rules empower MoI&B to issue orders to take down or block such content. Click here for PRS India's legislative brief about the 2021 Rules.

Under Rule 13 of the 2021 Rules, MoI&B is required to appoint an officer not below the rank of a Joint Secretary to the Government of India as the Authorised Officer for the purpose of issuing directions to take down or block specific content on the social and digital media platforms. Under Rule 14 the Government has set up an Inter-Departmental Committee consisting of the representatives of MoI&B, the Ministries of Women and Child Development, Law and Justice, Home Affairs, Defence and such other Ministries and organisations and domain experts. The Authorised Officer is the Chairperson of this Committee. The Committee's mandate is to receive, examine and act on complaints regarding the violation of the code of ethics prescribed by the 2021 Rules. The SSMI, if such an entity can be identified through reasonable efforts, is required to be heard before issuing any direction for blocking content. The Committee may recommend to MoI&B to issue a censure or warning to the concerned SSMI(s) or require it to issue an apology and also delete any content apart from directing other remedial measures. Rule 15 provides for the procedure by which such a direction will be communicated by the Authorised Officer to the SSMI.

Rule 16, which appears to have been invoked in the case of the BBC's documentary film, empowers the Secretary, MoI&B to issue orders to block any content on social and digital media platforms on the basis of a specific recommendation submitted by the Authorised Officer, in case of an emergency, without issuing notice to the SSMI. Within 48 hours of the issuance of such a direction, the Authorised Officer is required to bring the matter before the Inter-Departmental Committee for consideration post facto. The Committee has the power to either approve or reject the Secretary, MoI&B's interim orders. If rejected, the interim order is to be revoked and the content/information must be unblocked for public access.

Rule 17 requires all such orders- both ordinary and emergency issued by the Authorised Officer to be placed before a Review Committee established under Rule 419A of the Indian Telegraph Rules, 1951. According to the relevant Rules notified in the Gazette of India on 05 February, 2014, the Cabinet Secretary is the Chairperson of this Committee. The Secretary, in charge of Legal Affairs and the Secretary, Department of Telecommunications are the remaining members of this committee. This Committee meets once in two months to review the blocking orders issued by the Union Government to confirm them or set them aside.

The 1st RTI Intervention:

On 14th December, 2022, an RTI application was submitted to the MoI&B through the Union Government's RTI Online Facility seeking the following information:

"I. I would like to obtain access to the following information under the RTI Act, 2005 with regard to the implementation of Section 69A of the Information Technology Act, 2000 read with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in the form specified at paragraph no. (II) below:

1) The total number of directions issued by the Authorised Officer under Rule 15(2) since 25 February, 2021, till date,

2) A legible copy of every direction referred to at sub-paragraph no. (1) above,

3) The total number of directions issued by the Secretary, Ministry of Information & Broadcasting under Rule 16(2), since 25 February, 2021, till date,

4) A legible copy of every direction referred to at sub-paragraph no. (3) above,

5) The total number of final orders issued by the Secretary, Ministry of Information & Broadcasting, under Rule 16(4), since 25 February, 2021, till date,

6) A legible copy of every final order referred to at sub-paragraph no. (5) above,

7) The exact dates on which the Review Committee specified in Rule 17 held its meeting since 25 February, 2021, till date, &

8) A legible copy of every order issued by the aforementioned Review Committee under Rule 17(2) during the aforementioned period, for unblocking of content and/or information that was blocked earlier as per directions issued by the competent authorities under Rules 15(2), 16(2) and 16(4).

II. Form of access: Kindly publish all the information described at paragraph no. (I) above on your official website & inform me of the respective URLs by email.

III. Kindly note, all information described above is in the nature of information that is required to be disclosed suo motu under various clauses of Section 4(1) read with Section 4(2) of the RTI Act. Whereas your Ministry has caused to be published through the Press Information Bureau, at least six press releases with regard to the blocking of various URLs to prevent the further spread of fake news, disinformation and misinformation adversely affecting the national security & foreign relations of & public order in, India, I have not been able to find on your official website, the information & official records specifically described at paragraph no. (I) above. Hence the submission of this formal request for information."

Click here to read the RTI application.

MoI&B's reply

On 10/01/2023, the Central Public Information Officer (CPIO) of MoI&B replied that information about the orders issued by the Authorised Officer was "Nil". The CPIO rejected access to copies of records relating to the proceedings of the Inter-Departmental Committee and the Review Committee stating that they were 'confidential' and exempted from disclosure under Section 8(1)(a) of the RTI Act. 

Click here to read the MoI&B CPIO's RTI reply.

What is wrong with this reply?

The CPIO's reply is erroneous for multiple reasons:

1) A careful perusal of the IT Act and the attendant Rules indicates that nothing in Section 69A or the 2021 Rules requires the content blocking orders or the materials, which form the basis of such actions, to be treated as confidential. Further, nothing in the 2021 Rules or the 2014 amendments to the Indian Telegraph Rules, 1951 require the record of proceedings of the Review Committee to be kept confidential. Further, Section 8(1)(a) of the RTI Act contains at least seven grounds for refusing access to information such as sovereignty and integrity of India, security, defence, strategic, economic and scientific interests of the State, relations with foreign States and use of the information to cause incitement to commit any offence. The CPIO has not invoked any of these grounds to reject the RTI application. The only reason given for refusing access is that it they are 'confidential' information. 

2) It is quite surprising that the earlier blocking orders (provisional and final) have not been issued by the Authorised Officer as per Rule 15.

3) When it is common practice for MoI&B to publish press releases giving details of the social or digital media platform which has been directed to block content, the purpose of refusing to publish the blocking orders per se and the materials which form the basis of such orders and the record of the Review Committee is difficult to gauge from the CPIO's mechanical reply.

In view of the above reply, another RTI application has been submitted recently to MoI&B seeking copies of the statute, rule or executive instructions which require information about such blocking orders to be labelled 'confidential'. The CPIO's reply is awaited.

The 2nd and 3rd RTI interventions

Section 87 of the IT Act requires the Union Government to table every Rule made to give effect to its other provisions, in both Houses of Parliament as soon as the Rule is notified. Section 87 is reproduced below:

"(3) Every notification made by the Central Government under sub-section (1) of section 70A and every rule made by it shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule." (emphasis supplied)

In other words, every Rule made by the Union Government under the IT Act must be subjected to parliamentary scrutiny soon after it is notified in the official gazette and becomes operational. This is a common provision in all parliamentary statutes which ensure that the Government does not abuse its rule making power to transgress the letter and spirit of the principal enactment. Any MP may move a motion for modifying any Rule or simply annulling any or all of the Rules. A simple majority is required for this motion to be carried through either House. The Committees on Subordinate Legislation of the Lok Sabha and the Rajya Sabha may also take up the Rules so tabled for detailed scrutiny and submit their report to the Chair of the respective Houses. In such proceedings, the Government is required to defend the Rules before the Committees.

In December 2022, identical RTI applications were submitted to the Secretariats of the Lok Sabha and the Rajya Sabha (after the aforementioned RTI application was filed with MoI&B). Amongst others, the following information was requested:

"I would like to obtain the following information from your public authority under the RTI Act, 2005:

4) The exact date on which the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified by the Union Ministry of Electronics and Information Technology as G.S.R. 139 (E) in the Gazette of India dated 25th February, 2021, were tabled in the Lok Sabha/Rajya Sabha,

5) The exact date on which the Rules specified at paragraph no. (4) above were selected by the Committee on Subordinate Legislation of the Lok Sabha/Rajya Sabha for scrutiny, and

6) A legible copy of the report of the aforementioned Committee if any, that was tabled in Lok Sabha/Rajya Sabha upon completion of the scrutiny of the Rules specified at paragraph no. (4)."

As questions 1-3 pertain to another related subject matter, they are not being discussed here. The outcome of this portion of the RTI interventions will be reported later, on an appropriate occasion.

Click here to read the two RTI applications.

The RTI replies from Parliament's Secretariats

1) A few days ago, the CAPIOs of the Lok Sabha and the Rajya Sabha both confirmed that the 2021 Rules have not been tabled in the respective Houses.

2) In view of the non-tabling of the 2021 Rules, the respective Committees on Subordinate Legislation were not able to select them for detailed scrutiny.

Click here to read the Lok Sabha CAPIO's reply.

In other words, despite the lapse of almost two years since their notification, the Union Government has not found the time to table the 2021 Rules in Parliament. The replies of the CAPIOs are in the sixth and seventh attachment below. Strangely, in his covering letter, the CAPIO, Lok Sabha, copy pasted the content from a reply he seems to have issued against another RTI application. The same text of the covering letter is repeated in the second covering letter issued by him in response to the RTI application transferred to him by the CPIO, Rajya Sabha. Neither the Rajya Sabha CAPIO nor his counterpart in the Lok Sabha have bothered to sign the replies uploaded on the RTI Online Facility. I hope the hard copies of the replies will bear their signatures.

Click here to read the Rajya Sabha CAPIO's reply.

Conclusion

According to official figures, more than a thousand people lost their lives during the 2002 violence in Gujarat and several thousands more had to take refuge in relief camps after the communal mobs drove them out of their homes. Unprecedented levels of sexual violence against women characterised this episode of communal frenzy. What the State agencies did or failed to do to prevent the burning of the two coaches of the Sabarmati Express train and nip the subsequent communal violence in the bud is fairly well known. Commissions of Inquiry and the National Human Rights Commissions have published detailed reports pinning responsibility on various actors- both public and private. Several criminal cases are still going on to determine the guilt of the culprits who committed murder, rape, dacoity, arson and mayhem. I am not sure what new information the BBC documentary film will add to the existing public knowledge.

However, the reluctance of the Union Government to be more transparent about its actions while and after blocking content on social and digital media platforms, including the latest action against the BBC documentary film only gives rise to suspicion about its intentions. If the Government believes it has an iron-clad case to invoke its powers under the 2021 Rules to block such content, it must make such orders and all materials that form the basis of such orders public. To deny access to such orders when its press releases on the subject contain significant amounts of information such as: the core subject matter of the blocked content, the viewership and subscriber statistics of each platform which hosted the blocked content, can amount to abuse of administrative discretion. If on the other hand, the Government believes that disclosure of such information will be detrimental to the public interest, the reasons for arriving at such a belief must be publicised.

Even more worrisome is the negligence evidenced by the delay in tabling the 2021 Rules in Parliament. This tabling mechanism is an important statutory measure to ensure that the Government always exercises its rule making power within the four corners of the principal enactment. As a delegatee of Parliament, the Government is answerable to both Houses for the manner of exercise of this power of delegated legislation. 

I hope Parliamentarians will raise these public interest issues during the upcoming Budget Session and impress upon the Government about the transparency imperative. A closed fist raises more suspicion than a palm which is wide open.

All facts are in the public domain. Views are personal.

Post script: One of our esteemed readers has alerted me to the fact that the 2021 Rules were laid on the table of the Rajya Sabha on 25^th March 2021 . However the Lok Sabha CAPIO’s reply that these Rules have not been tabled in the Lok Sabha is perplexing. To this extent, the claim made in the above write-up stands corrected. Nevertheless, the admission by the CAPIOs of both Houses of Parliament that the Committees on Subordinate Legislation have not taken up these Rules for detailed scrutiny, given their pathbreaking nature, continues to remain a cause for concern.

CHRI's Trail of Inquiry: RajyaSabha-ITRules-Tabling-CPIOreplies-Dec22toJan23 | LokSabha-ITRules-Tabling-CPIOreply-Jan23 | Parliament-ITRules-Tabling-RTIapplns-Dec22 | MoI&B-MediaBlockingOrders-CPIOreply-Jan23 | MoI&B-MediaBlockingOrders-RTIappln1-Dec22 | RajyaSabhaBulletin-25March2021