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tl;dr:
The founder of research groups Hindutva Watch, and India Hate Lab which track and monitor hate speeches, hate crimes and violence committed against marginalised communities, has challenged the illegal, arbitrary and disproportionate blocking of their entire websites, by the Ministry of Electronics and Information Technology (“MeitY”) before the Delhi High Court. The petition argues that the blocking action by the Ministry of Electronics and Information Technology (“MeitY”) under the Information Technology Act (“IT Act”) violates principles of natural justice, the Supreme Court's holding in Shreya Singhal v. Union of India (2015) 5 SCC 1, Section 69A, and the proportionality test. On April 30, 2024, the Delhi High Court issued notice and directed MeitY's counsel to seek instructions on whether a virtual post-decisional hearing could be provided. The next date of hearing is July 26, 2024. IFF has provided legal assistance in this matter.
Why should you care?
Blocking entire websites constitutes a prior restraint on freedom of speech and expression online. It not only blocks access to pre-existing content (backwards-looking) but also extends a forward-looking prohibition on all future speech. The backwards-looking exercise is content-specific, while the latter shifts the target of takedown power from content to the user. This is based on the assumption that all future speech acts will fall afoul of Section 69A of the IT Act and be subject to takedown. Such a forward-looking exercise of blocking power would result in a permanent prohibition from participating in the marketplace of ideas. These proceedings are crucial for promoting transparency and accountability in India's online censorship regime. MeitY has historically never made blocking orders public or disclosed them, and creators rarely receive a prior hearing before their content is blocked.
Background
The Petitioner founded “Hindutva Watch”, a research initiative which monitors, documents, and archives hate crimes and human rights atrocities perpetrated against persons belonging to marginalised and minority communities. India Hate Lab is a research collective which studies hate speech, disinformation, and conspiracy theories targeting religious minorities in India using qualitative and quantitative research methods.
Sometime in January, MeitY directed the blocking of the entire websites of Hindutva Watch and India Hate Lab without providing an adequate hearing - either prior or subsequent to the blocking - or copies of the blocking order.
Hindutva Watch and India Hate Lab Approach Delhi High Court
With legal assistance from IFF, Mr. Raqib Hameed Naik, founder of Hindutva Watch and India Hate Lab filed a writ petition before the Delhi High Court to challenge the blocking of their respective websites. MeitY is the respondent. The petition seeks the following reliefs:
- Direction to call for records pertaining to the blocking of both websites as maintained under Rule 15 of the 2009 Blocking Rules, including the orders of blocking issued by the Respondent under Section 69A of the IT Act;
- Direction to call for the orders/findings of the Review Committee constituted under Rule 14 of the 2009 Blocking Rules in respect of its decision regarding the blocking of the websites of Hindutva Watch and India Hate Lab;
- Direction for setting aside and quashing all orders/directions issued by Respondent under Section 69A of the IT Act in respect of the websites of Hindutva Watch and India Hate Lab, including the orders blocking the said websites;
- Direction for immediate restoration of access to the websites of Hindutva Watch and India Hate Lab.
The blocking of the websites of Hindutva Watch and India Hate Lab has been challenged on the following grounds:
- First, the blocking of the entire websites of Hindutva Watch and India Hate Lab exhibits gross procedural impropriety and violates principles of audi alteram partem, open justice, and reasoned orders. This constitutes an egregious breach of natural justice and the right to a fair hearing under Article 21. In Shreya Singhal v. Union of India, the Supreme Court held that both the intermediary and the originator must be heard before blocking content. The Petitioner was not afforded a meaningful opportunity for a hearing as he was not provided with a virtual hearing link (he was not in India at the time), preventing him and his authorised legal counsel/representative from participating in the hearing.
- Second, there is no sanction for a post-decisional hearing offered to the Petitioner, as it is only contemplated in cases of emergency blocking under Rules 8 and 9 of the 2009 Blocking Rules. Further, a post-decisional hearing would be ineffective and violate the principles of natural justice, as the authority may proceed with a “closed mind”, thereby “limiting proper consideration of the representation”. In any event, the post-decisional hearing was not properly offered, as the Petitioner, who was not in India at the time, was not provided with a virtual hearing link for the same.
- Third, the Petitioner was not provided with a copy of the blocking order. Notably, the Supreme Court in Shreya Singhal saved the 2009 Blocking Rules from being struck down on the express ground it required a hearing, and that aggrieved parties may challenge the reasons provided in the blocking order under Article 226 of the Constitution. MeitY has historically cited the confidentiality requirement under Rule 16 of the Blocking Rules to withhold blocking orders from aggrieved persons.
- Fourth, the Petitioner’s operation of the websites of Hindutva Watch and India Hate Lab is an exercise of his right to freedom of speech and profession online under Articles 19(1)(a) and 19(1)(g) of the Constitution. The Hindutva Watch website is an essential online repository of hate crimes and the India Hate Lab website hosts novel and cutting-edge research on the impact of hate speech across India. Both websites are crucial for fostering democratic participation and ensuring government accountability. The takedown of these websites also violates their audience's right to information under Article 19(1)(a) of the Constitution.
- Fifth, blocking of future speech acts is impermissible under Section 69A of the IT Act as it is backward-looking and linked to existing content “any information generated, transmitted, received, stored or hosted in any computer resource”. Blocking an entire website is forward-looking, restricting both existing and future content based on the presumption that future content will be illegal. This amounts to pre-censorship and leads to permanent exclusion from participating in the marketplace of ideas.
- Sixth, Section 69A of the IT Act reflects the spirit of Article 19(2) of the Constitution by enumerating specific grounds on which online content may be blocked. The grounds in the former are more limited than in the latter. Blocking power cannot be exercised on grounds outside the specific contours of Section 69A. If such power is to be used on grounds beyond those enumerated in Section 69A, there must be a direct and proximate link to the grounds under Section 69A.
- Seventh, blocking of the entire websites of Hindutva Watch and India Hate Lab fails to satisfy the third prong of the proportionality test i.e., the rights-restricting measure must be the least restrictive way of achieving the legitimate goal. MeitY must demonstrate that no alternative existed other than prior restraints on the Petitioner's Article 19(1)(a) rights. A less rights-infringing measure would be the targeted takedown of specific web pages, which MeitY has the technical capacity to implement.
Proceedings at the Delhi High Court
The matter was listed as Item 75 before a Bench of Justice Subramonium Prasad of the Delhi High Court on April 30, 2024. Advocate Vrinda Bhandari appeared on behalf of the Petitioner.
The Delhi HC issued notice and directed that the order dated April 25, 2024, in a similar writ petition filed by the petitioner challenging the blocking of the entire X/Twitter account of Hindutva Watch shall apply. The Bench reiterated its earlier direction from its order dated April 25, 2024, directing the counsel for the Respondent to seek instructions on whether a virtual post-decisional hearing could be provided to the Petitioner. At this juncture, counsel for the Respondent submitted that providing a virtual link is not feasible.
Adv. Bhandari pressed for arguments on the point but the Bench was not inclined to hear the same and stated that the same could be taken up at the next date of hearing. The next date of hearing is July 26, 2024.
We extend our gratitude to Mr. Raqib Hameed Naik for taking the initiative to approach the Delhi High Court and for allowing us the opportunity to provide him with legal assistance. His challenge plays a pivotal role in the fight to promote transparency in India’s online censorship regime and hold the government accountable for its decisions to ban websites, delete tweets, or remove videos.
We are also grateful to the IFF’s legal team, composed of Advocates Vrinda Bhandari, Gautam Bhatia, Abhinav Sekhri, Radhika Roy, and Gayatri Malhotra, along with Advocates Anandita Rana, Madhav Aggarwal and Pragya Barsaiyan and IFF Freedom Innovation Fellows Medha Garg and Rubayya Tasneem. We will keep you updated on what happens next!