Research relating to the procedure and the remedies of website blocking

The Information Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009

The Information Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009 in its Section 5 and Section 8 elaborates on the
procedure relating to the blocking of the websites. The Sections are as follows:

“5. Direction by Designated Officer.—

The Designated Officer may, on receipt of any request from the Nodal Officer of
an organisation or a competent court, by order direct any Agency of the
Government or intermediary to block for access by the public any information or
part thereof generated, transmitted, received, stored or hosted in any computer
resource for any of the reasons specified in sub-section (1) of section 69A of the
Act.

8. Examination of request.—

(1) On receipt of request under rule 6, the Designated Officer shall make all
reasonable efforts to identify the person or intermediary who has hosted the
information or part thereof as well as the computer resource on which such
information or part thereof is being hosted and where he is able to identify such
person or intermediary and the computer resource hosting the information or part
thereof which have been requested to be blocked for public access, he shall issue
a notice by way of letters or fax or e-mail signed with electronic signatures to
such person or intermediary in control of such computer resource to appear and
submit their reply and clarifications, if any, before the committee referred to in
rule 7, at a specified date and time, which shall not be less than forty-eight hours
from the time of receipt of such notice by such person or intermediary.

(2) In case of non-appearance of such person or intermediary, who has been

served with the notice under sub-rule (1), before the committee on such specified
date and time, the committee shall give specific recommendation in writing with
respect to the request received from the Nodal Officer, based on the information
available with the committee.

(4) The committee referred to in rule 7 shall examine the request and printed
sample information and consider whether the request is covered within the scope
of sub-section (1) of section 69A of the Act and that it is justifiable to block such
information or part thereof and shall give specific recommendation in writing
with respect to the request received from the Nodal Officer.

(5) The designated Officer shall submit the recommendation of the committee, in
respect of the request for blocking of information alongwith the details sent by the
Nodal Officer, to the Secretary in the Department of Information Technology
under the Ministry of Communications and Information Technology, Government
of India (hereinafter referred to as the "Secretary, Department of Information
Technology").

(5) The designated Officer shall submit the recommendation of the committee, in
respect of the request for blocking of information alongwith the details sent by the
Nodal Officer, to the Secretary in the Department of Information Technology
under the Ministry of Communications and Information Technology, Government
of India (hereinafter referred to as the "Secretary, Department of Information
Technology").

(6) The Designated Officer, on approval of the request by the Secretary,

Department of Information Technology, shall direct any agency of the
Government or the intermediary to block the offending information generated,
transmitted, received, stored or hosted in their computer resource for public
access within the time limit specified in the direction:

Provided that in case the request of the Nodal Officer is not approved by the
Secretary, Department of Information Technology, the Designated Officer shall
convey the same to such Nodal Officer.
 They can state that it was the case of emergency as well where the other side is
not provided adequate opportunity of hearing.”

In the Section 8, which is highlighted above, the procedure entails serving a notice
to the person or the intermediary. The emphasis on this has also been laid down in
the case of Shreya Singhal v. Union of India.

The revlevant para(s) of the case has been attached herein

A. “24. In State of Madras v. V.G. Row MANU/SC/0013/1952 : (1952) S.C.R.

597, this Court said:

This Court had occasion in Dr. Khare's case MANU/SC/0004/1950 : (1950)

S.C.R. 519 to define the scope of the judicial review under Clause (5) of Article 19
where the phrase "imposing reasonable restriction on the exercise of the right"
also occurs and four out of the five Judges participating in the decision expressed
the view (the other Judge leaving the question open) that both the substantive and
the procedural aspects of the impugned restrictive law should be examined from
the point of view of reasonableness; that is to say, the Court should consider not
only factors such as the duration and the extent of the restrictions, but also the
circumstances under which and the manner in which their imposition has been
authorised. It is important in this context to bear in mind that the test of
reasonableness, where ever prescribed, should be applied to each, individual
statute impugned and no abstract standard, or general pattern of reasonableness
can be laid down as applicable to all cases. The nature of the right alleged to
have been infringed, the underlying purpose of the restriction imposed, the extent
and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the judicial
verdict. In evaluating such elusive factors and forming their own conception of
what is reasonable, in all the circumstances of a given case, it is inevitable that
the social philosophy and the scale of values of the judges participating in the
decision should play an important part, and the limit to their interference with
legislative judgment in such cases can only be dictated by their sense of
 responsibility and self-restraint and the sobering reflection that the Constitution
is meant not only for people of their way of thinking but for all, and that the
majority of the elected representatives of the people have, in authorising the
imposition of the restrictions, considered them to be reasonable. (at page 606-
607)”

In this particular paragraph, the emphasis has been laid down even on the procedural
requirements, pertaining to the circumstances and the manner in which the imposition has
been authorized, which in the present case relates to the blocking of the websites. This
has further been upheld in the consequent cases such as Amish Devgan v. Union of India
(UOI) and Ors. (Paragraph 38), Sharat Babu Digumarti v. Govt. of NCT of Delhi
(Paragraph 26) and Google India Private Limited v. Visakha Industries and Ors.
(Paragraph 65)

B. “109. First and foremost, blocking can only be resorted to where the Central
Government is satisfied that it is necessary so to do. Secondly, such necessity
is relatable only to some of the subjects set out in Article 19(2). Thirdly,
reasons have to be recorded in writing in such blocking order so that they
may be assailed in a writ petition Under Article 226 of the Constitution.”
C. “110. The Rules further provide for a hearing before the Committee set up-
which Committee then looks into whether or not it is necessary to block such
information. It is only when the Committee finds that there is such a necessity
that a blocking order is made. It is also clear from an examination of Rule 8
that it is not merely the intermediary who may be heard. If the "person" i.e.
the originator is identified he is also to be heard before a blocking order is
passed. Above all, it is only after these procedural safeguards are met that
blocking orders are made and in case there is a certified copy of a court
order, only then can such blocking order also be made. It is only an
intermediary who finally fails to comply with the directions issued who is
punishable Under Sub-section (3) of Section 69A.”

Further, in the case of Tanul Thakur v. Union of India, the same situation arose in
which the petitioner was not granted a notice prior to the blocking of the website. In this
 case, lack of notice and the lack of hearing the other side are the contentions which are
raised. These contentions have their foundation in Shreya Singhal case.

However, in the situations of emergency, the opportunity of hearing to the other party
could be dispensed with. The Section 9 of the Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) Rules, 2009 deals with the
blocking of information in cases of emergency. It is stated as under-

“9. Blocking of information in cases of emergency.—

(2) In a case of emergency nature, the Secretary, Department of Information

Technology may, if he is satisfied that it is necessary or expedient and justifiable
for blocking for public access of any information or part thereof through any
computer resource and after recording reasons in writing, as an interim measure
issue such directions as he may consider necessary to such identified or
identifiable persons or intermediary in control of such computer resource hosting
such information or part thereof without giving him an opportunity of hearing.”

REMEDIES-

1. Filing a writ petition.

2. Alternatives to filing the writ petition is to file an RTI to the concerned authorities (the
Ministry of Electronics and Information Technology, the Ministry of Home Affairs and
the Ministry of Information and Broadcasting through the online portal) to probe in the
nature of the blocking and advocating for safeguarding the digital rights of the
community.