New Delhi— On 31 March this year, Kalim Ahmed, a journalist by profession, received an email from Twitter with the subject line “Twitter Notice of Withholding”. The social media giant informed him that it received a “legal removal demand” from the government of India to take down a Twitter thread he posted on 22 February 2023.
Kalim had made a long thread of tweets detailing cases of hate speech delivered by a Telangana Member of Legislative Assembly (MLA) named Raja Singh, now suspended from the Bharatiya Janata Party (BJP).
The 23-year-old journalist from Guwahati posted videos and news reports of Singh’s hate speeches delivered in Maharashtra, giving evidence of what many found disturbing and with the potential to spread enmity between Hindus and Muslims.
But Twitter did not inform Kalim of the exact grounds under which the government sought his tweets’ removal in India.
The Ministry of Electronics and Information Technology (MEITY) is empowered to issue directions for blocking access to information (including tweets, websites—anything available on the internet) under section 69A of The Information Technology Act, 2000.
The procedure it follows to do this is detailed in ‘The Information Technology (Procedure and safeguards for blocking for access of information by public) Rules, 2009’ or the IT Blocking Rules, 2009.
Kalim’s tweets are still available out of India, as Twitter usually geo-blocks tweets and accounts within the jurisdiction of the authority that requested removal—unless it violates Twitter’s user policy.
Ever since billionaire Elon Musk took over Twitter last October, the company has increasingly acceded to government requests for censorship and surveillance. The company’s own data showed that it did not decline a single such request between October 2022 to April 2023, unlike before Musk’s acquisition.
The government too, did not inform Kalim about its censor order. Not just Kalim, but the government does not inform any users of its blocking decision, either before or after a decision is made.
These issues, along with the absence of any information leave people, like Kalim, looking for answers.
“This lack of transparency also allows for the complete lack of accountability that exists in India’s blocking regime,” Tanmay Singh, Senior Litigation Counsel at digital rights advocacy group Internet Freedom Foundation (IFF) told Decode.
However, a Delhi High Court case can change this.
The Case Of Dowry Calculator
In 2018, MEITY blocked a satirical website called Dowry Calculator which allowed people to calculate dowry amounts based on various factors like skin colour, caste, alma mater, profession, etc. It is “dedicated to all the match-making aunties of India”, the site said.
A few days before the censorship, the website was wound up in controversy. On 31 May 2018, Jyotiraditya Scindia, then a Member of Parliament from the Indian National Congress, noticed the website and called the satire “unacceptable”. Tagging the then Women and Child Development (WCD) Minister, he urged action.
Immediately, basis the WCD Minister’s letter, MEITY blocked Dowry Calculator.
Like Kalim, the website’s founder, Tanul Thakur, a journalist and film critic, was not informed of the exact grounds under which his website was blocked. Neither was he given notice of the proposed action against his website nor was he provided a copy of the blocking order.
Both, ought to have been done, experts say.
“When online information is blocked on orders of the Union Government, often the originators of the blocked information [Thakur in this case] are not provided a copy of the blocking order, or an opportunity to be heard,” Singh told Decode. “As a result, they may not even become aware that their information has been blocked pursuant to an order of the Government,” he added.
Since a user is not given a copy of the blocking order, it becomes extremely difficult to contest or challenge such a ban.
Thakur attempted to cull out some information. He filed a Right To Information (RTI) application with MEITY to obtain information about his website’s blocking. Under India’s RTI Act, 2005, any citizen who demands information via an application is guaranteed a reply from the concerned government body within 30 days.
The answering officer may provide the sought information in their reply, or, reject the request under one of the 10 exemptions provided in Section 8(1) of the Act.
In Thakur’s case, MEITY informed him that his website was blocked basis of a written communication from the WCD Minister. “The Committee examined the content and in the interest of preventing incitement to the commission of any cognizable offence relating to public order recommended blocking of URL," MEITY said in its RTI reply.
It also said that Rule 16 of the IT Blocking Rules, 2009 required MEITY to maintain “strict confidentiality”, and rejected Thakur’s request for a copy of the blocking order.
Rule 16 requires requests and complaints to be kept confidential. “Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof,” it reads.
“These reasons for rejecting RTIs, particularly when filed by the originators [Thakur in this case] whose information has been blocked for access on the internet, are not consistent with Indian law, including the 2009 Blocking Rules, as well as the Supreme Court's judgement in Shreya Singhal,” Singh, the counsel at IFF, told Decode.
The 2016 Shreya Singhal judgement of the Supreme Court ruled that an originator of blocked information must be provided with a copy of the blocking order, with reasons clearly stated for the blocking.
Thakur had to ultimately approach the Delhi High Court for the first time in December 2019. IFF has been assisting him with his case.
In his petition before the court, Thakur contended the following:
-That he was not given any advance notice or granted a hearing before MEITY passed a direction for blocking his website.
-That a copy of the blocking order was not provided to him.
-That denying information under Rule 16 of the IT Rules 2009 is “unconstitutional” and leaves his right to make representation and challenge the ban “redundant”.
The petition accused MEITY of exercising its blocking powers “in a manner that fundamentally abrogates the principles of natural justice”.
MEITY on its part said that the Dowry Prohibition Act, 1961 justifies blocking the website. The Ministry has also accused Thakur “of abetting the offence of giving and taking of dowry”. Further, MEITY claimed that an advance notice could not be given to Thakur since his contact details could not be found from the website.
On 11 May 2022, the Delhi High Court directed MEITY to provide a copy of the ban order to Thakur and also afford him a post-decisional hearing before the Inter-Ministerial Committee.
“It is the first case in India, where the High Court ordered the Ministry of Electronics and Information Technology to provide him a copy of the Blocking Order and an opportunity to be heard by the Ministry,” Singh said, noting that the order has set a good precedent for other cases.
After the post-decisional hearing, MEITY decided to continue the ban on Thakur’s website.
In November 2022, the High Court asked Thakur to file a fresh petition, this time challenging MEITY’s decision to sustain the ban even after the post-decisional hearing.
In his fresh petition, Thakur now contends:
-That denying information, including in an RTI application, under Rule 16 of IT Blocking Rules, 2009, is “impermissible”.
-That such blanket confidentiality about ban decisions defeats the purpose of having a procedure.
-That his website should be unblocked.
Thakur submits that MEITY has admitted that it did not possess any material examining the immediate risk posed by his website. “Rather, the blocking was recommended on the imaginary and unfounded links between figures of dowry deaths reported annually and the mere existence of the website [Dowry Calculator]”.
The court is expected to hear and rule on the merits of the case, including whether Rule 16 of the IT Rules 2009 can be used to deny information on a censor order.
If Thakur’s petition succeeds, MEITY may have to begin sharing information about its censor decisions. It may also have to serve notice and grant a hearing to any user whose content is intended to be censored, thereby ushering in much-needed transparency and accountability in internet censorship practices.
As a result, people like Kalim and Thakur will be asked to appear before a MEITY committee and explain why their content should not be banned from access.
If the Ministry still decides to go ahead and block a user’s content, it will have to share a copy of the ban order which would have to reflect the exact grounds for ordering censorship of the content.
This will help persons, like Kalim and Thakur, understand the situation and decide if they want to challenge the decision.
“Tanul Thakur's petition in the Delhi High Court is a crucial case for the landscape of online censorship in India,” Singh said.
MEITY blocks information for all cases of censorship
This reporter analysed three other cases—one from 2021 and two from 2023—in which the government ordered the blocking of content. In each of them, the government was found to not follow its own laid down procedures and found to deny any information with respect to its decision.
In all three cases, Decode analysed, the affected users tried to seek information, including a copy of the blocking order and reasons for the decision, from MEITY by filing an RTI application. All were denied on the same grounds.
In 2021, actor Sushant Singh, who is vocal about issues like hatred and bigotry faced temporary suspensions of his Twitter account. When he filed an RTI request to gather information about the suspensions, MEITY rejected it.
In 2023, two cases emerged—that of Kalim, and of a Twitter handle named Hindutva Watch, an organisation that tracks incidents of violence against minority communities of India by radicalised Hindu groups.
Both had their tweets taken down after posting details of Telangana MLA Raja Singh’s hate speeches.
This reporter filed an RTI request to understand the reasons behind ordering censorship of Kalim’s and Hindutva Watch’s tweets. However, just like in the other cases, MEITY rejected details for both of these cases.
All these RTIs were rejected on two main grounds:
One, that the process followed while ordering blocking of content is required to be kept “strictly confidential” under Rule 16 of the IT Blocking Rules, 2009.
Two, that the information is a matter that “relates to sovereignty and integrity of India, the security of Nation, relation with foreign State” and therefore exempted under Section 8(1)(a) of the RTI Act.
Section 8(1) exempts a public body from providing any information if it falls under certain categories like the security of the nation, matters of commercial confidence, matter under active investigation, etc.
These exemptions are widely misused, experts say.
Continued violation of RTI Act to deny information on censorship
On 1 February 2021, at the height of the Indian farmers’ protest against three farm acts passed by the Parliament of India in September 2020, MEITY had ordered Twitter to block certain user accounts, including that of Delhi-based news magazine The Caravan. The publication was regularly posting opinions and updates on the protests, deemed critical of the government.
MEITY was asked to divulge details of its action against the magazine’s Twitter account under RTI Act but it refused. However, just 3 months before it rejected the RTI request, it had provided some information on the grounds under which it ordered blocking of the magazine’s account.
MEITY provided this information in response to a parliamentary question by Members of Parliament on 24 March 2021. The Ministry told Parliament that it blocked The Caravan’s account on the grounds of “public order”.
Under the RTI Act, information that cannot be denied to the parliament or the state legislative assembly, cannot be denied to a citizen. This, in a way, puts a citizen at par with a Member of Parliament or MLA.
In The Caravan’s case, since some information was provided to the parliament, similar information should also have been provided to a citizen under the RTI Act.
However, MEITY denied any information citing the same two grounds- Rule 16 of the IT Blocking Rules 2009 and national security under Section 8(1)(a) of the RTI Act.
Prima facie, Singh from IFF said, it would appear that “the pattern of providing limited information before the Parliament, but denying the same information in RTI proceedings is not in consonance with the framework of the RTI law in India”.
Despite the law being clear, it continues to deny citizens and even affected users, any information about its censorship actions.
A definitive ruling in the Tanul Thakur case could help resolve these issues.