By Mr. Vignesh Baskaran
In the current digital world, cyber space and information plays a major role. It has both pros and cons; on one hand it helps in the effective dissemination of information. On the other hand, there are certain drawbacks and offences which are needed to be curtailed by the State in order to maintain peace and security. The ministry of Information Technology invoking its power under Section 69A of the Information Technology Act and Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 issued an order banning 59 mobile Apps on 29th June 2020[i]. Since there are various concerns and criticisms about this move by the government, there is a need to examine the provisions to assess the legitimacy of the ban.
Section 69A was introduced by the Information Technology (Amendment) Act, 2008 after the Mumbai-attacks happened on 26-11-2008. The said event demonstrated how technology could be used so as to prejudicially impact the Indian sovereignty, security and integrity. In the wake of the 26/11 Mumbai attacks, section 69A was introduced by the Information Technology (Amendment) Act, 2008.
3.POWER TO BLOCK PUBLIC ACCESS TO ANY INFORMATION THROUGH ANY COMPUTER SOURCE
Section 69A of the Information Technology Act empowers the Central Government or any officer specially authorised on this behalf to issue directions for blocking for public access of any information through any computer resource. Section 69A of the Act provides for the discretionary power as to blocking of information. However, it shall be subjected to sovereignty and integrity of India, defence of India, 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.
This provision insists that the power has to be exercised if it is necessary or expedient to do so. It also uses the word ‘in the interest of’, which indicates that there must be a direct or proximate nexus between the reason and the ground provided under Section 69A of the act. It also necessitates to state the reasons for the order and to follow the procedures as prescribed.
In Shreya Singhal v. Union of India[ii], the Supreme Court stated that section 69A is a narrowly drawn provision, which falls squarely within the categories of permitted reasonable restriction under Article 19(2) of the Constitution. The checks and balances are provided in the section and the fact that reasons for blocking to be recorded in writing makes the provision fair and free from arbitrariness and held that section 69A is Constitutionally valid.
4. PROCEDURE TO BLOCK INFORMATION FROM PUBLIC ACCESS
The procedure for blocking is provided under the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. It however classifies the procedure into two cases namely normal and emergency cases. In case of normal procedure there shall be request made, which will be submitted by the Nodal officer to the Designated Officer[iii] and the Committee on the examination of the request[iv].
The Designated Officer will issue notice to the organization to appear and submit the clarification within 48 hours, later the approval is sought from the Secretary of Department of Information Technology. On Approval of the Secretary, the designated secretary shall direct the agency of the government or intermediary to block the offending information for public access[v].
In case of Emergency, the Designated officer if he thinks that it is necessary and expedient, then he will submit the request with the specification to the Secretary of Department of Information technology. The Secretary being satisfied that it is necessary and expedient shall pass an interim order for blocking the information. Later the designated officer within 48 Hours shall bring the request to the Committee for its recommendation. On receipt of the final order, the Secretary shall pass a final order for the blocking of information for public access[vi].
There is one another way in which the information shall be blocked by the order of the court[vii].
5.RIGHT TO INFORMATION OF THE PUBLIC
In the instant case, the Ministry has passed an order for blocking 59 Apps based on emergency because it felt that those apps were prejudicial to Sovereignty and Integrity of India, Defence of India, Security of the State and Public Order, which are clearly on the grounds mentioned under Section 69A of the IT Act. However, It is to be noted that the order has not yet been published by the ministry. In Shreya Singhal case, the SC have clearly validated Section 69A as reasonable because it was providing a reasoned decision which is in par with Articles 14, 19 and 21 of the Constitution. It is clearly laid down by the SC that the reason has to be made in public. Thus, in the instant case the Government have violated the right to information of the public.
The main objective of Section 69A of the IT act is to empower the Government machinery to protect the sovereignty and Integrity of the Country and to protect the interest of the Country. However, the recent move by the government has not provided the proper order or reasons of blocking. It is also necessary to note that there are various concerns to be noted like privacy of the individual which have been ignored in various cases, which necessitates the Data protection Bill has to be enacted to protect the privacy of the people.
[i]PIB Delhi, Government Bans 59 mobile Apps which are prejudicial to sovereignty and integrity of India , defence of India, Security of state and public order, PRESS INFORMATION BUREAU, (Jun. 29, 2020, 08:47 PM), https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206. [ii]Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1. [iii] Rule 6, Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. [iv]Ibid, Rule 7. [v]Ibid, Rule 8. [vi]Ibid, Rule 9. [vii]Ibid, Rule 10.