POWER OF BLOCKING OF WEBSITES AND AVAILABLE RECOURSE IN INDIA

Section 69A of the Information technology, Act 2000 (“IT Act”) empowers the Central Government and its authorised officers to issue directions to the intermediaries/ internet service providers for blocking access to any website in India, if the authorised officer is satisfied that it is necessary or expedient to do so in the interest of:

a)???????? Sovereignty and integrity of India

b)???????? Defense of India

c)???????? Security of the State

d)???????? Friendly relations with foreign states or public order

e)???????? For preventing incitement to the commission of any cognizable offence relating to above

As per Section 69A of the IT Act, the authorised officer issuing such order/ direction for blocking of website is required to records reasons in writing for passing such orders. Further, it has been prescribed that any intermediary who fails to comply with the direction issued shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine which in a way made it mandatory for the intermediaries to comply with such blocking orders without having any discretion to refuse such orders in order to avoid penal consequences.

Under Section 69A(2) of the IT Act, the Government of India has notified Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘IT Blocking Rules”)which deal with the procedure and manner for blocking access of the websites.

Under the IT Blocking Rules, two mechanisms have been provided to deal with the requests received for blocking access of the websites:

·?????? Examination of Request under Rule 8 of the IT Blocking Rules

·?????? Blocking of Information in case of emergency under Rule 9 of the IT Blocking Rules

Examination of Request and blocking of access

Under Rule 8 of the IT Blocking Rules, the officer appointed by the Central Government as Designated Officer, on receiving of request for blocking of access by any Ministry or Departments of the Government of India, or State Government, shall

To a Person/ entity based in India

·?????? Issue a notice to such person or intermediary in control of such website

And

·?????? Direct them to appear and submit their reply and clarifications at a specified date and time.

To a Person/ entity based out of India

·?????? Issue a notice to such person or intermediary in control of such website

?And

?·?????? Direct them to respond to the notice within the stipulated time.

After following the above steps, the committee (appointed under Rule 7 of the IT Blocking Rules) shall examine the said request and consider whether

·?????? the request is covered within the scope of sub-section (1) of section 69A of the IT Act and

·?????? that it is justifiable to block such information or part thereof

and

·?????? shall give specific recommendation to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India ("Secretary, Department of IT").

On approval of the request by the Secretary, Department of IT, the Designated Officer shall direct any agency of the Government or the intermediary to block the access of such website.

Blocking of Information in case of emergency

Under Rule 9 of the IT Blocking Rules, in any case of emergency nature, for which no delay is acceptable, the Designated Officer shall examine the request and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof, should submit such request with specific recommendations to Secretary, Department of IT.

If the Secretary, Department of IT is satisfied that it is necessary or expedient and justifiable to block public access of any website, then he shall

·?????? record reasons in writing,

and

·?????? issue directions of blocking, as an interim measure, without giving an opportunity of hearing.

That within forty-eight hours of issue of interim direction, the request for blocking should be considered by the committee.

On receipt of recommendations of committee, Secretary, Department of IT, shall pass the final order as regard to approval of such request for blocking or revoking of interim directions.

The words “emergency nature” have not been defined under the IT Blocking Rules or IT Act and is left at the subjective discretion of the Designated Officer and Secretary, Department of IT.

REMEDIES AVAILABLE AGAINST BLOCKING ORDERS

In most of the cases of the blocking of website, the person who is owning the website is not given notice as envisaged under Rule 8 of the IT Blocking Rules. The aggrieved owners of such websites are not even aware about the blocking of website or reasons of such blocking and are in a fix.

In such a scenario, the aggrieved person should follow the following actions:

·?????? Filing of RTI Applications with the relevant department to ascertain whether there is any blocking order or not.

·?????? Filing of representation before the relevant department.

Even though filing of the representation before the concerned department is a futile exercise as the government in most cases fail to even acknowledge or respond to such representation, still it is advisable to file such representation.

If the above actions do not yield any positive result, the only recourse left with the aggrieved person is to invoke the writ jurisdiction of the Courts assailing the said blocking orders. The order passed for blocking of website is an executive/ quasi-judicial actions and the same is open to judicial review.

In the case of ?Karti P. Chidambaram vs Bureau Of Immigration, ?2018(3)RCR(Criminal)874, the Hon'ble Madras High Court has held that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under?Article 226?of the Constitution of India.

In the writ, the aggrieved person can request the Court to direct the government to furnish the reasons for blocking of the website and for setting aside such blocking orders on merits as well as for non-adherence of natural justice. During the pendency of the writ petition, in some cases, the government agrees to withdraw such blocking orders in order to avoid judicial scrutiny.

As per the prevailing trend, the government also agrees to give a post-decisional hearing to the aggrieved person, including an opportunity to take corrective measures, if found necessary, though no such mechanism has been provided under the IT Blocking Rules. Reference in this regard may be made to the orders passed in the cases of Tanul Thakur vs. Union of India & Ors., W.P.(C) 13037/2019 (https://dhcappl.nic.in/dhcorderportal/GetOrder.do?ID=mmh/2022/1669727751905_9807_2022.pdf)? Raqib Hameed vs. Union of India represented by the Secretary Ministry of Electronics and Information Technology & Anr., W.P.(C) 5820/2024 (https://dhcappl.nic.in/dhcorderportal/GetOrder.do?ID=smp/2024/724909941714372150536_96365_58202024.pdf), by the Hon’ble Delhi High Court.

By

Vijay Pal Dalmia, Advocate

Supreme Court of India & Delhi High Court

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