why book banning is better than website blocking

In the last week, there was a lot of attention focused on the ostensible blocking of three domains (one of which was a blogging platform –read here 1-kafila 2-medianama). I say ostensible because no one is sure what happened. Depending on the ISP through which the connection was sought to be made, either the webpage was shown as missing (a 404 error), the connection was refused “as per request of the Department of Telecom” (screenshot below) or as reported in some cases

the website was accessible. The statement of a leading ISP attributing the denial of access due to a technical glitch was greeted with skepticism by bloggers.

This skepticism was with good reason not only due to the message displayed above but also due to website blocking orders passed earlier. This includes a notable instance in July, 2006 when a government order seeking to ban extremist hindu blogs hosted on the blogging platform blogspot ended up blocking the entire domain (read here 1-order 2-shivam-vijs-post 3-rediff-article).

Even the recent draft rules on intermediary liability by singling out blogs without any purpose feed this paranoia. However, the prime reason for the growing distrust of bloggers of government is the opaque functioning in passing such orders. Even though the government has made a specific section and detailed rules on website blocking in 2009, which in all fairness incorporate a set of safeguards, they still do not mitigate this situation. This is due to the omission of two important provisions which in my view tilt the balance against free speech. The first is the absence of a provision calling for these blocking orders to be made public through a gazette notifications and second making these blocking orders appealable to the state high courts.

Both these proposed provisions are time honored safeguards with respect to the state government’s power to ban books. In this respect the code of criminal procedure under Sec. 95 provides, that when a banning order is made it will be through a gazette notification made by the state government. Hence, one notices that when Jaswant Singhs book on Jinnah was banned in 2010 by the Gujarat Government, an Order was made in the gazette and was made publicly available. Another condition which is imposed with respect to such orders is that these orders will provide the grounds of opinion for which the book has been banned. Though such a condition is contemplated under Sec. 69A as well as the blocking rules of 2009, till the order is made publicly available there is little use to these reasons.

The second proposed provision is with respect to the appeal. Firstly the right of appeal to a banning order is provided under Sec. 96 of the code which provides that any interested person can file an appeal to a state high court. Hence, the section providing for an appeal clearly recognizes the free speech injury is caused both to the speaker as well as to the listener and provides both of them with a locus. Coming back to the Jaswant Singh banning order, even though jaswant singh himself filed a petition in the Supreme Court of India, a group of publicly spirited citizens filed a sec. 96 appeal in the Gujarat High Court and succeeded before the Supreme Court could issue a direction. These two provisions will go a long way in building public confidence and a long term liberal touch towards website blocking in India. Finally even though there are frequent calls for scrapping old laws on grounds that they do not reflect present realities, the recent provisions of the IT Act can learn a lot from the antiquated Code of Criminal Procedure.

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