Delhi High Court Asks Government To Share Copy Of Blocking Order With Website Owner
The high court judgment is an important step towards transparency in blocking access to websites.
In a rare order, the Delhi High Court has asked the central government to provide a copy of its order blocking access to a satirical website to its owner.
dowrycalculator.com, created by Tanul Thakur, was blocked by the Ministry of Electronics and Information Technology in May 2018, seven years after it started. The direction was passed under the Section 69-A of the Information and Technology Act, 2001.
This provision allows the government to ask an intermediary to block any information generated, transmitted, received, stored or hosted in any computer resource. The grounds range from sovereignty and integrity of India to public order or for preventing incitement to the commission of any cognisable offence.
Dowrycalculator was designed as an online form that visitors could fill with options to arrive at a fictional “dowry amount” that a groom could attract based on social, educational and personal characteristics. Upon submitting the form, the website offered one out of nine pre-designed fictional dowry amounts, coupled with a satirical message that ridiculed the emphasis on dowry in society and how it could cause extreme financial hardship upon the bride’s family.
According to the petitioner’s lawyer, this is the first time a copy of the original censorship order would be provided to a content creator.
“I think the order is very important from the perspective of transparency since it is commonplace for the government to reject RTI requests by citing Rule 16 of the blocking rules,” said Thakur’s lawyer Vrinda Bhandari of Internet Freedom Foundation. “Blocking orders are otherwise shrouded in secrecy and never published in the public domain.”
NS Nappinai, advocate, Supreme Court; and founder of Cyber Saathi, said disclosure was important as every person has the right to know why their freedoms are being curtailed, so that they are in a position to contest or counter the action. “This order will have a far-reaching impact as such transparency is mandatory for any order passed by government agencies, be it for blocking, takedowns or monitoring.”
No Notice Or Hearing Was Granted: Petitioner
The petitioner was aggrieved with the restraint on access to his website without any hearing being granted.
Thakur argued that he should have been granted a hearing under the Information Technology (Procedure and Safeguards for blocking of Information to public) Rules, 2009 but that was never done. The RTI application seeking clarity also did not achieve any result as the request was refused citing Rule 16 of the blocking rules.
The rule mandates that strict confidentiality should be maintained regarding all the requests and complaints received and the action taken on them.
Thakur then moved the high court, where he argued that the action of the government was arbitrary, excessive and an unreasonable restraint on his right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
The restrictions on this fundamental right have to be narrowly tailored and that was why the Section 69-A of the IT Act required the reasons for blocking to be recorded in writing, the petitioner said.
“The respondents [government] cannot simply parrot the wordings of Section 69-A(1) to justify blocking since it is well settled that the anticipated danger (of incitement of offence) should not be remote, conjectural or far-fetched; and should have a direct nexus with the speech,” Thakur told the Delhi High Court.
The government failed to back the reasoning that blocking the website was necessary to prevent incitement to commission of any cognisable offence relating to public order, the petitioner said.
The central government, however, told the high court that it was willing to provide a post-decisional hearing to the petitioner and opportunity to take any corrective measures if found necessary. Thakur expressed his willingness to participate in the hearing.
The division bench of the Delhi High Court, comprising Justice Manmohan and Justice Dinesh Kumar Sharma, directed a committee set up by the IT Ministry under the blocking rules to grant a hearing to the petitioner on May 23. “A copy of the original blocking order, after redacting the portion pertaining to the third parties shall be furnished to the petitioner on or before May 23,” the high court said.
The case will be taken up for hearing next in September.