How legal frameworks are being used to throttle free speech and the media…The dangerous beauty of this framework is that each bill touches upon only certain key aspects that may be crucial for freedom of speech, but, together, they constitute a gargantuan web that is difficult to escape.
On 10 November 2023, the ministry of information and broadcasting released the draft Broadcasting Services (Regulation) Bill. This was the fifth piece of legislation that the Narendra Modi government introduced over the past two years with the stated aim of creating a regulatory framework for a fast-changing media landscape. These bills equip the state with dangerous tools and provisions to control and clamp down on critical voices and free speech.
It started with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This was followed by the draft Indian Telecommunications Bill, 2022. Then came the Digital Personal Data Protection Act, 2023, which was passed in August. Around that time, the Rajya Sabha also passed the Press and Registration of Periodicals Bill. There is also the much talked about, and yet mysterious, Digital India Bill, which will replace the Information Technology Act, 2000.
Through these laws, the government will create an Orwellian framework that will distribute powers to control media, censor content and target critical voices. The dangerous beauty of this framework is that each bill touches upon only certain key aspects that may be crucial for freedom of speech, but, together, they constitute a gargantuan web that is difficult to escape. Their fine print contains mechanisms and provisions that expand the government’s powers to monitor media outlets, allowing it to restrict, or even remove, content that it deems problematic, as well as to deny certain individuals the right to run print publications. In many instances, the government has given itself these sweeping powers without any judicial oversight and against the principles of natural justice.
Take, for instance, the IT rules, which were notified in March 2021. They carry several provisions that place contentious restrictions on digital news media and, in effect, empower the union government to block, delete or modify news published anywhere in the country. The rules mandate the creation of a three-tiered grievance redressal system—the final tier is an inter-ministerial group that will operate without any judicial oversight. Earlier this year, these rules were amended to authorise the establishment of a government-appointed fact-checking unit, with sweeping powers. The unit will have powers to instruct “intermediaries,” including internet service providers, to take down content it deems fake or misleading.
The telecom bill will expand the powers of the government to grant licences to service providers, at the cost of the Telecom Regulatory Authority of India, the sector’s independent regulator. The bill also empowers the government to block, intercept, or monitor messages exchanged between individuals or groups under certain circumstances, such as “occurrence of any public emergency” or “in the interest of public safety.”
The data protection act widens the powers of censorship on vague and unspecified grounds: “in the interest of the general public.” It also creates an enabling framework for surveillance, by allowing wide exemptions for its use by the government, and allows personal data to be retained for an unlimited period. The bill also broadens the scope of exemptions available to ministries to reject right-to-information applications, under the pretext of data protection and privacy.
The press bill will replace the existing Press and Registration of Books Act of 1867, which governs the registration and regulation of newspapers and magazines. While the new bill simplifies the process of registration, it still retains much of the colonial character of regulation and control that it ostensibly tries to veer away from. For instance, it introduces a new provision that anyone convicted of a “terrorist or unlawful activity” or “for having done anything against the security of the State” will be denied permission, or have their certificate cancelled. Given the liberal and arbitrary use of the Unlawful Activities (Prevention) Act—the basis for defining “terrorist act” and “unlawful activity”—as well as other criminal laws, including sedition, against journalists and media organisations to suppress freedom of speech, this is extremely problematic.
Then there is the broadcast bill, meant to replace the existing Cable Television Networks (Regulation) Act, 1995. The new draft creates a unified regulation to cover “broadcasting, OTT, Digital Media, DTH, IPTV.” It also contains a clause that allows an “authorised officer” the powers to “prohibit” broadcasters “from transmitting or re-transmitting any programme or channel” that is “not in conformity with the prescribed programme code and advertisement code.” The officer can also crack down on channels and programmes if they deem them likely to promote “disharmony or feelings of enmity” on a wide range of pretexts.
Given the intent that is evident from these legislations, one can only imagine the insidious design of the Digital India Bill, which the ministry of electronics and information technology has been alluding to for the past two years. Though little is known about the actual draft, it is certain that the bill will regulate all content on digital and social media.
Many of these legislations have been introduced without a substantive and meaningful consultation process. Though drafts were put out for consultation and feedback was solicited, it is quite clear from the reading of the final bills that responses to the most contentious concerns were not incorporated. It seems as if the three ministries responsible—information and broadcasting, electronics and information technology, and communications—had a clear agenda of creating this overarching system of control. The data protection act and the press bill were not even referred to any parliamentary committees for review and were passed on short notice of a few days, barely enough time for MPs to rummage through them in the midst of other house proceedings.
The other disturbing reality of these legislations is the way the government has found a rather covert and dangerous way to control and censor traditional media—print and broadcast—in the name of regulating the online space. The press bill is silent on regulating what is being published in Indian newspapers and magazines. However, by giving sweeping powers to block content under the IT rules and the data protection act, the government has extended the writ of such control to even print and conventional television broadcasting, since whatever is being published in newspapers and magazines is also being published on their websites, while news channels are being streamed online as well.
Even as these bills are being introduced in a hurried manner, short-changing norms of transparency and substantive consultancy, what we are seeing is, in fact, a continuum of a rather deep-rooted tradition of the Indian state. Successive governments, across party lines, have attempted to introduce new laws or amend existing ones to encroach upon press freedom. For all its problems, the proposed press bill is far less intrusive and draconian than a similar bill introduced under the United Progressive Alliance in 2010.
The unfortunate reality of India’s legislative framework pertaining to free speech is that it rests on a foundation that is intrinsically antithetical to its cause and has, over time, become its biggest bane. The fundamental right to freedom of speech, enshrined in Article 19(1) of the Constitution, is qualified by Article 19(2), which allows the state to impose restrictions “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” These exceptions are so broadly worded, so expansive and open to interpretation that they have become omnipresent in our laws. Each of the exceptions has been used by successive governments to convert any legislation that brushes up against this fundamental right into a tool to control and regulate free speech, rather than protect it.
Consequently, we have a cumbersome system of laws that weighs heavily on freedom of speech. In the criminal domain, we have the so-called offensive-speech laws in the Indian Penal Code—Sections 153, 295A, 298 and 505—all of which are rooted in exceptions mentioned in Article 19(2). These are the very provisions under which FIRs are filed so liberally against journalists. Additionally, there is the draconian UAPA, used so conveniently to intimidate and arrest journalists.
In the civil domain, legislation such as the Cable Televisions Networks (Regulation) Act of 1995, the Indecent Representation of Women (Prohibition) Act of 1986, the Dramatic Performances Act of 1876 and the Cinematograph Act of 1952, among others, have provisions that allow the government to take action against a person or entity for disseminating content that goes against any of the exceptions mentioned in Article 19(2), and to restrict or prohibit its circulation. All these powers have been assigned to an “authorised officer” or a “specified authority.” Notably, these terms have been made an integral part of much of the law-making processes. This allows the state enough ambiguity around who can actually bear responsibility for the crackdown on critical voices.
Another integral feature of Indian laws is the power to make rules at a later date. These rules often allow the government of the day sufficient room to spell out actual operative details that are restrictive in nature. The government usually notifies them without any substantive consultation, and they are usually passed by parliament without even an iota of discussion. The IT rules were just one such case.
The current government has exploited this systemic weakness in our legal framework far more insidiously than its predecessors. It has laid bare this inherently illiberal foundation of freedom of speech in our Constitution, which is otherwise a paean to the protection of individual rights and liberties. This has been done by enacting new laws that carry forward this tradition and by taking coercive action against dissent by deriving legitimacy from any of the multiple provisions embedded across laws. It is a dubious playbook that our lawmakers seem to have internalised deeply. The result is that we are caught in a perennial whirlpool, wherein each successive step the government takes is yet another strong current that pulls us deeper down.
https://caravanmagazine.in/commentary/narendra-modi-government-passes-laws-against-free-speech
After the truth-shower 