On Thursday, February 25th, the government notified new rules under the Information Technology (IT) Act dubbed the ‘Intermediary Guidelines and Digital Media Ethics Code’. These rules introduced a number of guidelines for social media and Over The Top (OTT) platforms which make such companies more accountable to the government and law enforcement authorities.
The measures include the appointment of a ‘Chief Compliance Officer’ by the company to ensure rules under the IT Act are being followed, the appointment of a ‘Nodal Contact Person’ to ensure constant coordination with law enforcement agencies as well as monthly reports detailing complaints from users and the measures taken to remove problematic content, and so on.
All of these rules expand the control of the authorities over digital media in one way or another. However, there are two points detailed in the so-called, ‘salient features’ of these rules which stand out from the list in their potential for misuse.
Two Problematic Points
The first, aimed at social media intermediaries that deal primarily with messaging, requires them to, “enable identification of the first originator of the information” to allow authorities to apprehend individuals and prosecute offences related to the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order” and so on.
The second deals with the responsibility of these intermediaries in the “Removal of Unlawful Information”. The rule states that, upon being notified by court order, a government agency, or an appointed officer, the social media platform would be required to remove any information, “prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries,” and the like.
The rule dealing with the removal of unlawful information seems to be an even greater overreach, allowing central authorities to have the final say in what information they deem to be unlawful and putting the content published on social media platforms directly under central control.
Making a social media company responsible for identifying where a ‘problematic’ message originated from is particularly dangerous from the standpoint of individual privacy. The point preempts this criticism and goes on to mention, “Intermediary shall not be required to disclose the contents of any message.” However, how a message can be judged to be damaging to the sovereignty and integrity of India without the contents of the message itself being disclosed, makes the proposition appear quite dubious.
What’s more, the specific phrases used in categorising content under these rules; ‘sovereignty and integrity of India’ and ‘public order’, bear an eerie resemblance to two notorious laws in the country; the Sedition law as detailed under Section 124-A of the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA).
Two Notorious Laws
Both the UAPA and the Sedition law have been increasingly employed to book dissenting voices from all over the country. In April 2020, Former JNU scholar Umar Khalid, along with several other protestors, were booked under the UAPA for their participation in the movement against the Citizenship Amendment Act. In January of this year, several of the country’s most prominent journalists were slapped with sedition charges for their Tweets relating to the farmer’s protests, and, most recently, 22-year-old climate activist Disha Ravi was arrested on February 14th and charged with sedition for her participation in the farmer’s protest ‘toolkit’ case.
These repressive laws have garnered criticism from various, disparate sources ranging from the opposition to the judiciary.
The phrases, ‘sovereignty and integrity of India’ and ‘public order’ feature not only in India’s sedition law and the UAPA but also as ‘reasonable restrictions’ to the Fundamental Right of Freedom of Speech and Expression as detailed under Article 19 of the constitution, thus often used to suppress dissenting voices in the country.
In the Delhi High Court Women Lawyers Forum’s Virtual Canteen held earlier in February on the topic of, ‘Our Right to Dissent’, senior advocate Rebecca John singled out the UAPA for its impact on dissenting voices that seek to hold the centre accountable for its actions.
Chitranshul Sinha, lawyer and author present at the same event, said, “It’s high time that (Section) 124 (of the Indian Penal Code) should be challenged yet again. We need that space to express our opinion.” In his book, The Great Repression, Sinha goes into further detail, describing the sedition law as a “colonial relic” that should be read-only as an emergency measure.
India’s use of the sedition law also garnered international criticism. The United Nations High Commissioner for Human Rights Michelle Bachalet on February 27th criticised India for its readiness to cast allegations of sedition on journalists and other dissenting voices.
Repression Becoming the Norm
Charges filed under the sedition law as well as the UAPA have been becoming more and more common over the past few years. As per National Crimes Record Bureau (NCRB) data, 2019 saw 93 cases of sedition filed. This was up from 70 in 2018, 51 in 2017 and 35 in 2016, representing a 165% increase in the three-year period.
Similarly, cases filed under the UAPA in 2019 were 1,226, increasing from 1,182 in 2018 and 901 in 2017. This upward trend is especially worrying considering the law is branded as anti-terror legislation and allows for authorities to take extraordinary action, such as detention without charge for a period of 180 days.
A 2019 amendment to the Act also allows for police custody of the accused to be extended by 30 days and gives the Centre the power to notify an accused individual as a ‘terrorist’ even without a trial. Such a law being enforced routinely represents a strong suppression of one of the central tenets of democracy; dissent.
What’s more, the rates of conviction in cases where either sedition or the UAPA are invoked are conspicuously low. As reported by The Print, charge sheets were only filed in 17% of sedition cases in 2019 and the conviction rate stood at only 3.3%. Similarly, only 9% of UAPA cases saw charge sheets filed with a conviction rate of 29.2%.
The cases filed under these two laws do not hold up in court; they are not meant to convict anyone. Rather, they seek to discourage the voices that speak out against authority with the harassment and trauma that come with arrest, detention, and having to defend yourself in court.
Charges Continue to Come
Despite the widespread criticism, cases continue to be filed under these laws and usually invoke the same key phrases mentioned above to justify their use; ‘public order’ and ‘the integrity and sovereignty of India’.
This accusation against these specific terms was most eloquently articulated by former Supreme Court Justice Madan Lokur in an article for The Wire. Drawing a comparison to the repressive regime under Indira Gandhi between 1975 and 1977, he said, “We are gradually witnessing a somewhat similar situation, the only difference being that during the Emergency days the alleged threat was to the internal security of the country and today the alleged threat is to the sovereignty and integrity of the country.”
The new rules notified under the IT Act represent an expansion of government control over the domain of the digital in India, and the presence of these familiar phrases within these rules begs the question, will the IT Act become the latest tool in the centre’s arsenal to silence the voices that dare speak up against it?
