Violation of Administrative and Fundamental Rights by banning BBC Documentary in India

by | Apr 25, 2023

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About Garvit Shrivastava

Garvit Shrivastava is in his second year of the BA LLB program at O.P. Jindal Global Law School. His research interests lie in the fields of public international law, Human Rights Law, International Criminal law and Insolvency & Bankruptcy Law.

On 21 January 2023, the Ministry of Information and Broadcasting directed YouTube and Twitter to censor BBC’s documentary “India: The Modi Question”, a two-part series that explores the escalating hostility between the Indian Prime Minister and the Muslim minority.

To ban the BBC documentary, the Ministry of Information and Broadcasting invoked Rule 16 of the Information Technology (Intermediary guidelines and Digital Media Ethics Code) Rules 2021, wherein the secretary can pass an order blocking the content of an online publisher in case of emergency.  Without providing the publisher a chance for a hearing, such orders may be made for protection of public order and national security. The Supreme Court of India ruled in Madhu Limaye v. Sub Divisional Magistrate and Ors. that in an emergency, some acts might be restricted or subject to anticipatory actions in order to preserve India’s integrity and public order. The court ruled that there had to be immediate and serious effects for the occurrence to qualify as an emergency.

In the present case, there was neither a situation of emergency  nor a threat to public order. Between the release of the BBC documentary on 17 January 2023 and the ban on 21 January 2023, there were no registered incidents of violence motivated by the documentary.

The ban was introduced by invoking Rule 16 of IT Rules 2021. Rule 16 says that the Secretary of the Ministry of Information and Broadcasting may pass an order, which is reviewed by an inter-departmental committee confirming or revoking it.  Even though the publisher subject to the order does not get an opportunity for judicial challenge, they can make submissions to the inter-departmental committee.

The documentary was banned on 21 January when the official order by the ministry had yet not been passed: the Rule 16 procedure had not been followed. The only information available in public is the Tweet of the senior adviser of the Ministry saying that the documentary has been blocked on YouTube and Twitter. The Supreme Court issued a notice on 3 February to the central government directing to place before the original record of the order by the ministry. This delay in the order ultimately hindered the formation of inter-departmental committee and prevented the publisher from making submissions.  This delay violates Section 69(A) of the Information Technology Act, 2000 which says that the blocking order must be in writing and must elaborate on the reasons behind the ban.

This ban violates the fundamental right to receive and disseminate information given under Article 19(1)(a) of the Indian Constitution. The decision to ban the documentary violates the right to freedom of press by restricting the journalists in the documentary from reporting the cases. The ban also violates the right to free speech of various citizens who appeared in the documentary expressing their views. In addition, by banning the content, the decision violates the right to information of all Indian residents.

Article 19(2) provides for certain permissible restrictions of this right. They are largely the same as those allowed under the IT Rules 2021, namely threats to public order or sovereignty and integrity of India. In the case of Maneka Gandhi vs. Union of India, the Supreme Court of India held that any restriction must be subject fair and non-arbitrary procedures. In the present situation, as established earlier, the ban on the documentary is arbitrary and unfair. The Ministry of Information & Broadcasting has a common practice of publishing press releases for the orders issued to block media content. However, in this case, ministry arbitrarily did not publish the official orders. The IT Rules were introduced in 2021, however, they have not been considered in parliament. Article 87(3) of the IT Act provides for mandatory requirement to table the published rules in both the houses of parliament. The union government violated Article 87(3) of the IT Act by arbitrarily delaying the process established by the law. As a way forward, statutory reforms should cater to the rights of the citizens providing freedom of speech and expression as well as freedom of press. The union government needs to put the IT Rules 2021 in both the houses to establish a fair procedure wherein the government can be held accountable if it violates the fundamental rights of the citizens.

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