Blocking sites and the fundamental right to information

[Originally written in December, 2006]

The Government of India is putting in place an advance screening system at the bandwidth landing stations to block individual websites and blogs perceived as threats to national security. This includes blocking a particular URL at the sub-domain level.

Well, if the blocking is confined to the matters of national security only , as the report mentioned above suggests, subject also to the necessary safeguards, perhaps one can understand. But, if the intention is to block sites and blogs carrying a different shade of opinion or those criticising the Government or the ruling party or on some other lesser excuse, then one has to object strongly against the proposal. National security is paramount because the interests of the society or the nation as a whole must take precedence over the individual interest, when the same is required in the interests of the national security.

But, let us first see what are the Constitutional provisions in this regard. The fundamental right guaranteed under Article 19 of the Constitution, inter alia, states that all citizens shall have the right to freedom of speech and expression. The Supreme Court has held that the aforesaid right to freedom of speech and expression includes the right to acquire information and disseminate the same. It also includes the right to communicate the information through any available media whether print or electronic or audio-visual, viz., advertisement, movie, article or speech, etc. Moreover, this right also includes the freedom to communicate, circulate or disseminate one’s opinion, without interference, to a large number of persons at the same time within the country as well as abroad.

Giving a wider meaning to the aforesaid right of freedom of speech and expression, the Supreme Court has held that communication and receipt of information are two sides of the same coin, therefore this right includes not only the right of communication but also receipt of information. It is also held that the right to know is a basic right of the citizens of a free country and the aforesaid Constitutional provision guarantees it as a fundamental right.

However, it is pertinent to point out that the aforesaid freedom of speech and expression is subject to certain restrictions, as laid down in the said Article 19 itself [in clause (2) thereof]. The State is permitted to make a law (or to continue to have an existing law) which imposes reasonable restrictions on the exercise of the aforesaid right in the interests of-

However, it is important to further point out that-

Whether a restriction imposed by the Government fulfils the aforesaid criteria and is therefore valid or not, is a question which is to be decided finally by the courts when such an action is challenged as a violation of the aforesaid freedom. It is germane to point out that the decision of the Parliament or the Government with regard to a particular restriction on the freedom of speech and expression is thus not final as it is subject to the judicial scrutiny as and when challenged in the courts.

In fact, the recent enactment of the Right to Information Act has further established the right of the citizens to get information in matters specified in the said Act.

It is in the light of the aforesaid Constitutional provisions that the proposed decision of the Government of India to block the websites and the blogs (which are perceived to be against the national security) has to be tested. Of course, the aforesaid restrictions, inter alia, allow restrictions to be made on the said freedom in the interests of the national security. One relevant question is whether the Government will confine itself to the genuine limit of national security only or goes further (in the garb of national security) in the hitherto unknown territories. Another relevant question is whether such restriction will be reasonable within the meaning of the aforesaid Constitutional provision.

There may be some practical limitations though. What happens when the same objectionable material is put on a mirror site (or a number of mirror sites)? How fast the Government machinery can detect such mirror sites and block them too? Then, what if the objectionable material is communicated through email? Moreover, what if the objectionable material is communicated in the encrypted form? What if such material is available only on an online Group which is not exposed to non-members, i.e., how to get information about such material?

There should also be some parity between the print / TV media on the one hand, and the internet on the other. One regularly notices a large number of TV shows or press reports in print media showing interviews with notorious criminals or dons or terrorists from places as far as UAE or Europe or Pakistan. But, there is no ban over them. At the same time, when a website allegedly has some matter on a don or a terrorist or the like, it may be restricted as it happened in July this year (in fact, the whole blogspot website was blocked at that time by some ISPs, under confusing orders of the Government, along with all the sub-domains allocated to the millions of genuine bloggers. Thankfully, the proposed restriction talks of restricting sites at the sub-domain level also, which means only one particular errant blog or part of a website may be blocked instead of blocking the whole of the blogs or the websites). So, there has to be a clear policy with specific guidelines. Moreover, there should be provision for a faster appeal process.

Let us keep our fingers crossed on the proposed restrictions, as sometimes due to an over-jealous approach, the remedy proves to be worse than the disease itself. Moreover, how successfully and effectively such a decision can be implemented is also a thing which can be seen only in the future.