By Jayasree Saha–
Providing and ensuring the National security of the country is undoubtedly the first duty of the Government of India. Section 69A of the Information Technology Act, 2000 plays a significant role in securing our country from threats via the internet and online platforms.
On 9th June 2000, The Parliament of India enacted The Information Technology Act (IT ACT), 2000 and came into force on 17th October 2000. It has been amended in the year 2008 after a bill was introduced by Pramod Mahajan.
It is a known fact that the Indian Telegraph Act, 1885 allows the central government to tap phones. In a verdict in 1996, the Supreme Court said that the government can tap phones only when there is a case of “public emergency”. Similarly, Section 69A of IT Act empowers the central government to block any content on the internet platform, websites or mobile application. It is also one of the primary laws that deal with cyber-attacks, cyber-crime and electronic commerce in India.
Section 69A of the information technology act, 2000 plays a very crucial role in not only maintaining the integrity, dignity and sovereignty of the country but also other constitutional institutions of the country. Over the years, the government has also relied on this provision to take down online content in the interest of public order within the country of India.
WHAT IS SECTION 69A OF THE IT ACT?
This section states-
“Power to issue directions for blocking for public access of any information through any computer resource. –
1. Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
2. The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.
3. The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”
The Central Government holds the power to intercept and decrypt information which is transmitted, generated, stored in or received by any computer unit. They also have the authority to block public access to any information available on online platforms such as on websites or mobile apps.
In situations where it is brought into attention of the government that online platforms pose a threat to the nation and national security, public access to the accused platforms can be banned and blocked as a precautionary method.
The government simply cannot ban and block access. They have to follow a detailed procedure that is mentioned and listed under the Information Technology: Procedure and Safeguards for Blocking Access of Information by Public Rules, 2009. It is a necessary step before the government or a court can issue blocking orders.
The Central government can block any data that is generated, transmitted, received, stored or hosted in any computer resources. This is applicable and extended to any webpage, database or network available or hosted in India. Before taking any step, the government has to establish legitimate reasons. The reasons include Defense of India, Security of the State, Public order, Friendly relations with foreign states, Sovereignty and integrity of India and Preventing incitement to the commission of any cognizable offence relating to the aforementioned reasons. After proper analysis, if the government is satisfied with the necessity or expedience for ordering website-blocks then they can do so. Also, after being convinced it has a valid reason, then the central government has to follow the blocking procedure that is mentioned in the Blocking Rules which were notified on 27 October 2009.
In case someone fails to comply with the orders of blocking a site, or assist the government agencies with technical assistance or extend all facilities, then the punishment given is imprisonment for a period extending up to seven years along with a fine.
VALIDITY OF THIS SECTION:
Since its enactment in the year 2000, The Information Technology Act has come under stringent criticism and is accustomed to litigations or controversies over the years. It has been criticized not only for the alleged Constitutional infirmities of its provisions and Rules but also for the way it is implemented. Time and time again, a judicial review of this section has been demanded as it is deemed to be unconstitutional by many.
The validity of this section has been questioned and challenged in the case “Shreya Singhal versus Union of India” where Section 66A IT Act was held “unconstitutional” and was “struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).” The Supreme Court of India upheld the validity of Section 69A and along with it sustained the extant blocking procedures. The court stated, ” Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.”
The court also stated “that Section 69A, unlike Section 66A, is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.” This means the Centre can exercise it as the power to issue directions as they are adequate procedural safeguards. Therefore, the law mentioned in Section 69A of the IT Act is constitutional and only based on reasoned order, a website could be blocked. Hence, the validity of Section 69A Information Technolgy Act was upheld.
PURPOSE OF SECTION 69A IT ACT:
The main purpose of Section 69A of the Information Technology Act is to protect the nation and its citizens from an online attack. It came into force to secure the information and ensure privacy from foreign attacks. This section allows The Central government of India to stop the invasion of foreign cyber systems and hackers to acquire any kind of information such as private information, pieces of information regarding national resources from our country, India. This section has also been used to block sites and web-pages to maintain peace within the nation so that the sentiments of citizens are not hurt. It is a precautionary method as well as a solution to many disputes that can arise within and outside the nation.
One of the features of this section is that it includes the following terms “security of the state, emergency nature, sovereignty and integrity of India and public order”, which are the standard common terms used for national security determinations across Indian sub-continent laws. This section mandates and demands strict confidentiality about the complaints and action undertaken as only the members of the executive has the authority to examine requests and review appeals. The presence of this clause in the mentioned law does not allow Right to Information,2005 (RTI) queries and is therefore not questionable by the citizens. RTI is an act of the Parliament of India which contains provisions that allow the citizens of India to request information from a “Public Authority” within thirty days.
The provision of an event of an “emergency nature” is included in this section during which the designated officer examines the blocking request, and submits recommendations to the secretary of the Ministry of Electronics and Information Technology for further action.
The secretary can issue directions to block a website as an interim measure. In situations like these cases, the aggrieved party does not get a hearing. The term interim order refers to an order that is issued by a court during the pendency of the litigation and is customarily issued by the Court to ensure Status quo.
Nonetheless, within 48 hours of the interim orders being passed, the designated officer is required to bring the blocking request before the committee for further evaluation. The designated officer then is supposed issue a notice to the website, asking its representatives to appear before the committee at a specified date and time.
The minimum duration of 48 hours is given to the website to prepare for the hearing after which final judgement would be passed. The recommendation of the committee is then brought into the knowledge of the IT secretary who has the final say and may approve the request. The secretary holds the power and authority to disapprove the blocking request and give directions to unblock the website.
The section 69A also includes a provision for a review committee, which meets once in two months to review directions issued to block a website. Also, one of the mandatory procedures mentioned in the Rules is that, in all cases, whether emergency or not, the reasons to block the website have to be recorded in writing. The committee has to right to set aside the blocking order if the procedures listed in law have not been followed.
Hence, Under Section 69A, if a website threatens our nation, India’s defence, friendly relations with foreign
countries, its sovereignty and integrity and public order, the government can ban and block it, after following due procedure. As a result, public access to these sites, pages, applications or pieces of information is completely denied.
LEGAL UPDATES AND CASE LAWS:
- BANNING OF 59 CHINESE APPS
Amid the prevailing tensions between India and China at the Line of Control, the government has ordered the ban of 59 apps that were of Chinese origin under Section 69A of the Information Technology Act. They said the there has been raging concerns on aspects to data security and safeguarding the privacy of 130 crore Indians as there have been complaints of stealing and surreptitiously transmitting the personal data of users in an unauthorised manner to servers which have locations outside India.
With the growing and heightened tensions at the border, the government of India took this decision as a necessary step in the interest of the defence of India and national security of the state. The protection of citizen’s data from Chinese apps is a valid concern, and it is necessary to determine the harms posed by each app, as is envisioned by Section 69A. This is the reason for passing the interim order. The people having authority over the banned apps were given 48 hours to prepare for the hearing.
- SHREYA SINGHAL VS. UNION OF INDIA
The Supreme Court of India in its decision in Shreya Singhal v. Union of India, on 24 March 2015, struck down Section 66A of the Information Technology Act, 2000 because it violated the Fundamental Rights under Article 19(1)(a) and not saved under Article 19(2) that is the right to freedom of speech and expression over the Internet. In this case Section 69A of the IT Act was also challenged with allegations that there was no pre-decisional hearing afforded by the Rules particularly to the “originator” of information, procedural safeguards not available and it affected the Fundamental rights. The Court while dealing with these contentions, observed that unlike Section 66A, Section 69A is a narrowly drawn provision with multiple steps and several safeguards. The court also said that Section 69A is constitutional and upheld its validity.
- MAULANA MAHMOOD ASAD MADANI VS. UNION OF INDIA AND ORS.
This case was decided on 24th January 2013 by the Delhi High Court. In this case appellant, Maulana Mahmood Asad Madani filed a petition against the film “Innocence of Muslims” and its variants saying that it portrayed Prophet Mohammed in a disrespectful, derogatory, insulting, offensive and humiliating manner and hurt the religious sentiments if the Muslim Community in India. The court gave its Judgement in favour of the petitioner. Following the Judgement, under Section 69A of the IT Act, approximately 309 Uniform Resource Locators (URLs) hosting content related to clipping titled Innocence of Muslims were blocked.
CONCLUSION:
The Supreme Court firmly believes that there are sufficient checks and balances built into Section 69A of the IT Act and therefore is constitutional. This section empowers the central government to block and ban websites, web-pages, mobile apps as it deems fit in case National Emergency and follow the proper procedures mentioned in the Blocking Rules. This section plays a huge role within the national as well when disputes arise and the court decides this section is a necessary step to give judgement.
We can conclude, that the sole purpose of Section 69A of the Information Technology Act, 2000 is to safeguard the nation and ensure privacy to the citizens of the nation. It is a defence and security mechanism along to uphold the dignity, sovereignty and integrity of our country.
REFERENCES AND CITATIONS:
- Section 69A in The Information Technology Act, 2000, INDIAN KANOON, available at https://indiankanoon.org/doc/10190353/,last seen on 08/07/2020.
- Section 69A IT Act to block website constitutionally valid, says SC, FIRSTPOST, available at https://www.firstpost.com/india/section-69a-act-block-website-constitutionally-valid-says-sc-2171293.html/amp, last seen on 09/07/2020.
- Geetha Hariharan, Is India’s website-blocking law constitutional? – I. law & procedure, THE CENTRE FOR INTERNET & SOCIETY, available at https://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure, LAST SEEN ON 09/07/2020.
- Is India’s ban on Tiktok and 58 other Chinese apps consistent with the provisions of IT Act?, SCROLL.IN, available at https://scroll.in/article/966131/is-indias-ban-on-tiktok-and-58-other-chinese-apps-consistent-with-the-provisions-of-it-act, Last seen on 09/07/2020.
- Supreme Court Upholds Freedom of Speech on the Internet, LEXOLOGY, available at https://www.lexology.com/library/detail.aspx?g=9c25c4f8-63db-405c-a599-64e3440eb91a, last seen on 08/07/2020.
- Section 69A IT Act, Shreya Singhal Judgment And Blocking Of 59 Apps, LIVELAW, available at https://www.livelaw.in/top-stories/section-69a-it-act-shreya-singhal-judgment-and-blocking-of-59-apps-159442, last seen on 09/07/2020.
- Can Chinese apps appeal India’s ban? , THE PRINT, available at https://theprint.in/opinion/can-chinese-apps-appeal-india-ban-section-69a-of-it-act-has-answer/455316/#:~:text=Section%2069A%20of%20the%20Information%20Technology%20Act%2C%202000%2C%20was%20introduced,on%20websites%20or%20mobile%20apps.&text=Apart%20from%20this%2C%20a%20court,directions%20for%20blocking%20information%20online., last seen on 09/07/2020.
- Maulana Mahmood Asad Madani vs. Union of India, LEGACRYSTAL, available at https://www.legalcrystal.com/case/954438/maulana-mahmood-asad-madani-vs-union-india, last seen on 08/07/2020.
- Shreya Singhal vs. Union of India, LEGALCRYSTAL, available at https://www.legalcrystal.com/case/53062/shreya-singhal-vs-u-o-i, last seen on 09/07/2020.