AN ANALYSIS INTO THE CONSTITUTIONALITY OF INTERNET CENSORSHIP IN INDIA

THIS ARTICLE WAS WRITTEN BY SRINATH SAMBANGI, A STUDENT OF  ICFAI LAW SCHOOL, HYDERABAD.

The Internet is nothing but a collection or a network of billions of computers and other electronic devices worldwide. Internet provided us the easiest and the fastest way to communicate and has made our lives easy. Its easily regarded as one of the greatest inventions to see the light of the day. The invention of Internet was properly utilized after the invention of the World Wide Web in the year of 1989 by a British scientist named Tim-Burners Lee which was initially conceived to meet the demand for automatic information sharing system between scientists in the universities across the world. In what started to be an invention to facilitate research for scientists it went on to be commercially tapped and further be used for many other needs.

The day was August 15^th, 1995. Apart from celebrating its Independence Day, India has seen the light of internet. It was introduced with much fanfare and anticipation by Videsh Sanchar Nigam Limited with plans that seemed affordable for the service and what will be seen as astronomical in the present world.[1] With the start of the introduction, there has been no looking back for the internet industry in India.

Internet has moved on. In what started as a dial up connection, internet has seen many phases in India with many Internet Service Providers seeking to give plans to the customers in order to win them over from their competitors. The digital age and low prices of internet has caused a massive movement in India so much so that India has become the second largest market only behind China with over 460 Million users which is 10% of the population.[2] There exists a need for data protection when there is a lot of information that is been exchanged by the people of this country. The primary aim of the 3 organs of this country is to protect people’s interests. This however ends up in the hands of the government or the administrative body to approve of what we see or what we can comprehend from information that is available. There have been many laws that have come and been struck down in India. Section 66(A) of the Information Technology Act, 2011 which has tried to define the punishment for content what they call questionable online has been regarded as draconian and been struck down. There is always an argument on how internet Censorship is good or bad for some content. The opinions are subjective. The general opinion of why censorship is essential are weighed down according to the following:

1. It limits criminal and Terrorist activities- The primary merit of data censorship online is the fact that the information relating to any criminal or terrorist activity can be quickly traced and acted upon before the damage can be done. Internet has been a crime mongerer after its introductions and the perpetrators have found unique ways in order to get undue advantage. Phishing, frauds and scams are a few to name. Internet censorship can help prevent these illegal activities at the initial stages rather than seeing the damage being done.
2. Removes online threats to increase security- Information passed on the internet can often be sensitive due its vast pool of online banking systems. Before we pass any sensitive information we need to be confident and make sure the security system of the internet is well equipped to encrypt our data. Censorship deals with those elements which is believed to be a threat to secure the internet ecosystem.
3. It helps in stopping the spread of fake news- Fake news has been a fuel to many crimes in the recent years. It is easy to spread fake news through social media and sometimes people take law into their own hands. Fake news is dangerous and has an ability to influence or offend any part of the society which only will have dangerous consequences.

On paper, these advantages seem to be perfect for protection and overall security to protect the people. But does this justify the fact that it contradicts the very existence of Article 19 of the Indian Constitution?

India, like many other countries is facing a situation where legal frameworks that have been rational and logical in the past are providing old and outdated meaning to the situation in the changing world. There needs to be reforms as long as these laws are concerned. Over the past two years, the problems in the legal framework of governing the internet ecosystem has been exposed especially in the areas of surveillance and censorship. The Information Technology Act and the Indian Penal Code govern these two problems at hand and many other enactments such as Insults to National Honour Act act as an ancillary to these acts. It can be said that the Indian law is pretty liberal and fairly developed as long as the internet laws are concerned but the interpretation of the courts have permitted reasonable restrictions to favour the public. However there have been many instances in the past that makes us question Internet Censorship.

In the year of 2011, there was a major inroad paved for internet censorship. Kapil Sibal who was then the Minister of Communications & IT was seen rallying around major social networking sites such as Facebook and other internet giants as Google, Yahoo and Microsoft to pre-screen the content that was going to be posted online to figure out what information can be allowed and what information can be regarded as illegal. This led to a dissent and disappointment only for the Government to clarify that The Fundamental Rights are in place and they would not take any steps to violate it.

The Judiciary was of a different opinion in many cases. In the case of L.I.C of India Vs Prof. Manubhai D. Shah[3], The Supreme Court was in the opinion that pre censorship is constitutional in nature but the act of trying to stifle, gag or choke the Fundamental Rights would help usher an Autocracy. Recently, in Secretary, Ministry of Information and Broadcasting, Government of India Vs. Cricket Association of Bengal and Ors[4] stated that the public must have the benefit of plurality of views and opinions and no government can restrict the content that otherwise would be unfavourable for them.

The Supreme Court has held that the words “Freedom of Speech and Expression” must be broadly construed and facilitate a person’s right to circulate one’s views and it includes the propagation through print and digital media.

Conclusion:

It must be understood that law enforcement in India is tricky affair as the basic feature of our Constitution if flexibility and the fact that it permits censorship in limited circumstances. This problem also arises because of the fact that internet is not purely a local commodity but it is an internetwork between the countries of the world. The question of who watches the watchers is a relevant and an unanswered question but it must be said that the censorship laws are quire draconian, inconsistent and haphazard. Issues relating to communal violence and violence against women online must be watched with an eagle eye but the Apex Court must strike down a few provisions in IT Act to facilitate a more open system that abides the spirit of the Constitution and the Government must take steps to remove ambiguity in various enactments relating to internet and censorship to prevent conflicting interpretations.

[1]     http://dxm.org/techonomist/news/vsnlnow.html

[2]     https://www.statista.com/topics/2157/internet-usage-in-india/

[3]              (1992) 3 SCC 637

[4]              (1995) 2 SCC 161