Does Indian government have a toolkit to throttle free press

ON the night of 25 June 1975, Indira Gandhi, the then prime minister, imposed an Emergency on the country after getting the then President to sign the Proclamation. Almost immediately, the government ordered that the electricity supply to newspaper offices in Delhi be disconnected. The obvious purpose was to stop the publication of the 26 June 1975 editions of many newspapers. They would have contained the news of the declaration of Emergency and arrest of almost all the political leaders who had held a rally on the evening of 25 June at the Ram Lila Maidan in Delhi.

The night marked the beginning of a long era of sustained attacks on the freedom of the press with the government pre-censoring nearly everything that papers wished to publish. This included arbitrary and random culling of jokes, cartoons, and satirical content. Even slightly critical commentary of the government was punished by starving the press of sources of revenue.

The current government’s approach towards the media is eerily familiar, in terms of their essence and apparent intent to how the government in 1975 had behaved. The BJP-led government has, however, improvised to accommodate technological advancements in its tool kit on the press.

Regulating content and reach of the press
One of the most effective tactics used by the government to shut free voices is to shut the most important marketplace of ideas, the internet.

Recently, when clashes broke out between protesting farmers and the police on Republic Day, the Union Ministry of Home Affairs issued an order asking telecom operators to shut down internet services until midnight in Delhi’s Singhu, Ghazipur, Tikri, Mukarba Chowk, Nangloi, and adjoining areas. The internet has been shut down six times since, in the National Capital Territory and Haryana, the areas where farmers are protesting.

According to the global digital rights advocacy group Access Now, the Indian government imposed the highest number of internet shutdowns of all countries in 2018 (121 times) and 2019 (134 times). Its report, Targeted, Cut Off, And Left In The Dark, says the Indian government almost always used “pecautionary measures” as a justification to shut down the Internet in situations of military action.

A prime example is the internet shutdowns in the erstwhile state of Jammu and Kashmir on 4 August 2019, a day before the government read down Article 370 through a presidential order and reorganised the state into two Union Territories. This shutdown was the longest in the world, lasting 213 days. The disruption of the flow of information and additional restrictions on the movement of journalists in the region made it nearly impossible for the press to work.

Less than a week after the shut-down, Kashmir Times editor Anuradha Bhasin filed a petition in the Supreme Court pleading that access to the internet is critical for today’s press and that the authorities had forced the print media to a “grinding halt.” The petition also asked that the “debilitating restrictions” on the movement of photojournalists and reporters be “immediately relaxed in order to ensure the freedom of the press and media”.

The Supreme Court reiterated that the right to internet access is essential under Article 19, which forced the Centre to relax the curbs in Kashmir, but it still repeatedly curtailed internet access. In 2020, internet services were blacked out or severely slowed 83 times, or for 8,927 hours. This affected the press and around 10.3 million users and cost the Indian economy $3 billion.

Prime Minister Narendra Modi’s government simultaneously resorted to new rules and legislation to regulate the digital press.

In October 2019, the Department for Promotion of Industry and Internal Trade (DPIIT) amended the Foreign Direct Investment Policy, 2017, to include foreign direct investment (FDI) in digital media. The amendment, notified under the Foreign Exchange Management (Non-Debt Instrument), Rules 2019, capped FDI in digital media at 26% for “uploading/streaming of news and current affairs through digital media”.

Further, the amendment made it incumbent on digital entities to seek government approval for any foreign investment. Before the amendment, digital organisations had no restrictions concerning how much money they could receive from foreign entities; they did not have to seek government approval either.

In 2020, DPIIT issued clarifications regarding the amendment, which have the rules even stricter. They made it incumbent on news portals, news websites, news aggregators, and news agencies (known as digital news entities) to “align” their current foreign investments to 26 percent by 15 October 2021. The clarification requires these entities to obtain security clearance from the Ministry of Information and Broadcasting for “all foreign personnel likely to be deployed for more than 60 days”.

The amendment and the subsequent clarification had the intended impact. On 24 November 2020, HuffPost India announced they would no longer publish content. Many other digital news entities laid off staff members and made pay cuts. It is interesting that a government that projects itself as an advocate of “ease of doing business” and “Digital India” thought it necessary to curb the growth of digital news entities for no valid reason.

But the government was not done yet. In February, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were issued to replace the Information Technology (Intermediaries guidelines) Rules, 2011. Stringent conditions have been added for all digital platforms that host content from digital news portals, social media applications such as WhatsApp, Facebook, and Twitter, to video streaming platforms such as Netflix, Disney/Hotstar, and Amazon Prime.

These rules make for an alarming read. They require intermediaries to remove within 36 hours any content the government thinks “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation”. They grant the Ministry of Information and Broadcasting powers to issue directions to block content without any hearing in cases where it deems “no delay is acceptable”. Intermediaries are now also required to preserve information for 180 days, even after a user has deleted his or her account.

Both the FDI Rules and Intermediary Rules suffer from a fatal flaw: they go beyond the scope of their parent legislations. The FDI rules expanded the scope of the Foreign Exchange Management Act, 1999 (FEMA) to include digital media. There is no mention of “digital media” in the FEMA.

Similarly, the rules for intermediaries also expand the scope of the IT Act to regulate digital news entities and video streaming platforms, both of which are not mentioned in the parent act. This amounts to executive law-making, in contravention of the separation of power envisaged by the Constitution. The Leaflet