Indian publication ‘The Caravan’ has filed a petition at the Delhi High Court seeking revocation of the Section 69A [Information Technology Act, 2000] blocking order by the Ministry of Information & Broadcasting (MIB) directing take down of the publisher’s article titled ‘Screams from the Army Post’ from its website, along with a YouTube video and certain URLs of social media posts sharing the said article.
The Caravan received the highly controversial Section 69A order on February 12 by the Authorised Officer/Joint Secretary of the MIB against one of its article—an investigative story on alleged incidents of abduction, torture, and custodial killings of civilians at the hands of the officials of Indian Army in Poonch and Rajouri districts of J&K. The petition filed on 28 February 2024, revealed that the MIB stated in its order that “such contents have the potential to lead to communal disharmony and uprising against the security forces in Jammu and Kashmir, thereby being detrimental to sovereignty and integrity of India, security of the State, and public order in Jammu and Kashmir”. The MIB order also directed the removal of the URL of a post on X related to another Caravan article on the issue of ethnic cleansing in Manipur ongoing since May 2023.
The plea argued that the order “gravely violated” the petitioner’s fundamental right to free speech and expression, is arbitrary, unreasonable, and poses excessive restrictions to freedom of the press. It also revealed that the procedural gaps in the Inter-Departmental Committee hearing violate the principles of natural justice and the petitioner’s right to equality.
Why does it matter? The government has invoked Section 69A and provisions under the IT Rules, 2021 to block URLs, websites, tweets on X, and YouTube channels in the past. In February 2023, an RTI by MediaNama revealed that as many as 4,987 URLs were blocked under Section 69A by the Indian government between January 2022 and October 2022. However, the government’s rationale for invoking Section 69A remains shrouded in secrecy, as clause 16 of the Section 69A Rules ensures that all related requests, complaints, and actions are kept strictly confidential. It is important to note that while The Caravan has refrained from challenging the constitutionality of the IT Rules, 2021 at this stage, the petition does highlight that certain provisions of the IT Rules are a matter of pending judicial review in Courts.
Key arguments made in the petition:
1. Violation of Article 19(1)a and freedom of the press:
The Caravan has argued that legitimate criticism of the functioning of the state constitutes the duty of the press and the article in question has been published in fulfilment of such responsibility. The MIB order restricts the freedom of the press, which is an integral part of the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.
Citing the Supreme Court’s observations in Shreya Singhal v. Union of India, the petition pointed out that any restriction imposed by the State under Article 19(2) must be narrowly tailored to be reasonable and to prevent unnecessary restrictions on people’s rights. However, the Section 69A order failed to “demonstrate any pressing state interest” requiring removal of the said article, social media posts, and also of the X/Twitter post on the Manipur article, the plea stated.
2. MIB’s Section 69A order is “unreasonable and perverse”:
“In the present case, the blanket order to remove the entire Article, all related urls on YouTube, X/Twitter including on the Manipur article, and Instagram, is perverse and entirely absurd, an excessive and disproportionate restriction, and shows malintent and non-application of mind by the concerned public authorities,” the petition noted, highlighting the following important points:
- The order is unreasonable because it does not point out any factually incorrect statements in the article. Further, the contents of the article or the URLs have not been “denied, disputed, or rebutted by any of the state agencies”, including the Indian army.
- The order does not provide evidence or material on record to prove that the article is detrimental to the sovereignty of India, and the security of the state and has the potential to lead to communal tensions in Jammu and Kashmir. It also does not mention how the post on the Manipur article affects state’s interests.
- The order is ultra-vires (beyond the scope) of section 69A as it does not satisfy the requirements of necessity and expediency to issue order under the provision.
- The MIB’s claim that the article represents only a one-sided account is unfounded given that the article contains conversations with senior army officers, government officials, local residents, and politicians. Further, despite Caravan’s efforts to speak to the official spokespersons of the Indian army, Director General of Police, Kashmir, and others, the publication has not received any response to date.
- The allegations against X and Instagram posts of the article in question are a repetition (copy-paste) of the allegations against the article and the <<video>>. This demonstrates “non-application of mind” by the Committee while ordering their removal, the plea stated. It must be noted that Twitter (now X) had made similar arguments in its plea against the constitutionality of Section 69A blocking orders. The Karnataka HC had observed that if the law only talks about recording the reasons for an action, whether these should also be communicated with the parties depends on multiple factors—like the law itself, the stature of the decision-making authority, and the legal status of those seeking reasons (citizens, aliens, “enemies”, and more).
- The order violates the doctrine of proportionality that any restriction on freedoms enshrined under Article 19 needs to be “least restrictive but equally effective measure.”
3. The Caravan was not provided an opportunity for a fair hearing:
The petition argued the Section 69A order violated principles of natural justice in not providing the Caravan a reasonable opportunity and fair hearing to counter the allegations. The move violates the right to equality, guaranteed under Article 14 of the Constitution, which also ensures fairness in State action. The grounds stated in the petition are as follows:
- The initial notice sent to The Caravan was “vague” and did not specify the errors or explain why the article was detrimental to national interests. It also did not mention how the article on Manipur contributed to tensions in Jammu and Kashmir.
- The Caravan was denied access to the complaint received by the MIB and other crucial details about it, which prevented the publication from “effectively preparing” to counter the allegations during the hearing with the Inter Departmental Committee. The Committee is formed under Rule 14, as part of the Oversight Mechanism, envisaged under Rule 99(3)c of the IT Rules, 2021.
- Given that Rule 17 of the IT Rules mandates that complete records of the proceedings—complaint, proceedings, recommendations and directions—have to be maintained, under principles of natural justice, the said information needs to be disclosed to the petitioner.
- The entire process of hearing, deliberation, recommendation by the Committee, the Secretary’s deliberation and recommendation to the Authorised Officer was completed within hours on February 12, 2024. “…this undue haste shown, in the absence of any necessity or expediency shown, is itself strongly suggestive of a pre-determined mind against the Article and the urls, and confirms the entire process as a sham and a mere eyewash,” the plea noted.
- The order is based on a “deliberate misreading of the Article” without making any efforts to ascertain the editorial process undertaken before publishing the article.
4. Unconstitutionality of the order due to stay of Rule 9(1) and (3) of the IT Rules:
The plea highlighted that the IT Rules are “patently unconstitutional” and required to be struck down, however, in the current plea, the publication is not raising the larger constitutional challenge.
Notably, the plea argued that the constitution and authority of the Inter-Departmental Committee itself are questionable due to the Bombay High Court’s stay on the operation of Rule 9(1) and (3) of the IT Rules. In 2021, the Bombay High Court had stayed provisions of the IT Rules [Rules 9(1) and 9(3)] that would require digital news publishers to create a three-tier grievance mechanism and to observe a Code of Ethics. As reported by MediaNama, “The court reasoned in its interim order that it finds the requirements to be beyond the scope of the Rules’ parent legislation, the Information Technology Act, 2000, and violate the constitutional right to freedom of expression.”
Following the Bombay HC order, the Madras HC too stayed more provisions of the IT Rules in response to a petition filed by TM Krishna, and the Digital News Publishers Association. As reported by MediaNama earlier, the Court observed,
“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.”
Given that the oversight mechanism outlined under Rule 9(3)(c) is part of the three-tier mechanism, the stay order will also be applicable to the Ministry’s powers under Rule 14 to establish an Inter-Departmental Committee. “It is important to note that although Rule 14 was not stayed by the Hon’ble Bombay High Court, it was on the ground that the Inter Departmental Committee had not been constituted at the time of passing of the stay order,” the plea noted.
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