SSRN Id1237262

SARAI INDEPENDENT FELLOWSHIP PROGRAMME 2007 RAMAN JIT SINGH CHIMA
THE REGULATION OF THE

INTERNET WITH RELATION TO
SPEECH AND EXPRESSION BY
THE INDIAN STATE
Version 1.0
Project Blog: http://stateoftheweb.blogspot.com

Email: ramanchima@gmail.com
i
ACKNOWLEDGMENTS
This paper wouldn’t have been possible without the help of all of the following (in no
particular order);
• Poongkhulali, for all the support, advice, and patience at every stage in my working
on this project, without which I’m sure that it would have never come about
• The past fellowship projects of Ketan Tanna and Rudradep Bhattacharjee
• Mayur Suresh and Lawrence Liang of the Alternative Law Forum
• Francis Fortier and Ronald Deibert of the Open Net Initiative
• Aditya Sarkar and Asma for all the support from the beginning of the project itself,
and for actually convincing me to send off my proposal!
• My fellow members of the NLS Pro Bono Public Interest Group (Bipin, Anu,
Chaitanya, and Nirupama) and Prof. Sudhir Krishnaswamy
• Prof. T. Ramakrishna
• Nandini, for all the advice, least of all in regards the name of the blog!
• Pranesh Prakash, Vipul Nanda, and Karan Lahiri
• My mother, who’s had to be very patient putting up with me while I’ve been
struggling with portions of the project and for all of her help
• Most importantly of all, everyone in Sarai for running this truly excellent fellowship
programme. Special thanks to Vivek Narayanan and Moslem Ali Quraishy.
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TABLE OF CONTENTS
THE DEATH OF THE DIGITAL LIBERTARIAN DREAM– AN INTRODUCTION ............... 1
DIGITAL CONSTITUTIONALISM AND DIGITAL REALISM – UNDERSTANDING THE
BASIS FOR RE-EXAMINING HOW WE CAN CONCEPTUALIZE INTERNET REGULATION5
MEDIUMS OF COMMUNICATION AND CONSTITUTIONAL LAW – THE SCALE AND
EXTENT OF CONSTITUTIONALLY PERMISSIBLE REGULATION BY THE STATE WITH
RESPECT TO SPEECH AND EXPRESSION ON THE INTERNET ........................................ 8
- A SHORT PRIMER ON THE PROTECTION OF FREEDOM OF SPEECH UNDER THE
INDIAN CONSTITUTION......................................................................................... 8
- THE EFFECT OF THE NATURE OF A MEDIUM OF COMMUNICATION ON ITS
TREATMENT UNDER FREE SPEECH LAW ............................................................... 11
- A FEW NOTES ABOUT PRIVACY LAW AND SURVEILLANCE................................. 19
UNDERSTANDING THE LEGAL REGIME AND POLICY FRAMEWORK FOR INTERNET
REGULATION IN INDIA ............................................................................................ 24
- THE PERIOD LEADING UP TO 1999-2000: THE DOMINATION OF THE STATE OVER
THE INTERNET SERVICES SECTOR AND ITS SUBSEQUENT LIBERALIZATION ......... 24
- ISPS LICENSES AS REGULATORY INSTRUMENTS ................................................. 26
- THE CRUCIALLY IMPORTANT ROLE OF THE INFORMATION TECHNOLOGY ACT 29
- REGULATION BY EXECUTIVE NOTIFICATION – THE REGULATORY REGIME
CENTERED ON CERT-IN ..................................................................................... 32
- CYBERCAFÉ REGULATION – THE RATHER UNCLEAR SYSTEMS EXISTING IN
DIFFERENT STATES .............................................................................................. 37
- PROPOSED LAWS THAT MIGHT BUILD UPON PRE-EXISTING REGULATORY
FRAMEWORKS CONCERNING THE INTERNET ...................................................... 42
+The Information Technology Act Amendment Bill ...................................... 42
+The Broadcasting Service Regulation Bill of 2007 ........................................ 46
CENSORSHIP AND SURVEILLANCE: THE MANNER IN WHICH THE INDIAN STATE HAS
SOUGHT TO ACTIVELY REGULATE SPEECH AND EXPRESSION ON THE INTERNET ... 49
- VSNL’S ROLE IN THE INDIAN STATE’S EARLY STEPS TOWARDS INTERNET
REGULATION PRIOR TO 1999-2000 ..................................................................... 50
-THE DIVERSE WAYS BY WHICH THE INDIAN STATE HAS CARRIED OUT ACTIVE
INTERNET REGULATORY MEASURES IN CONTEMPORARY TIMES.......................... 52
+ Censorship and Filtering via executive directions ........................................ 53
+ Actions by law enforcement agencies vis-à-vis Cybercafés, Internet
Monitoring, and Content Based Prosecution.................................................. 55
THE CHALLENGES IN UPHOLDING DIGITAL CIVIL LIBERTIES IN INDIA: A
CONCLUSION .......................................................................................................... 59
iii
THE DEATH OF THE DIGITAL LIBERTARIAN DREAM– AN INTRODUCTION
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace,
the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not
welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater
authority than that with which liberty itself always speaks. I declare the global social space we are
building to be naturally independent of the tyrannies you seek to impose on us. You have no moral
right to rule us nor do you possess any methods of enforcement we have true reason to fear.
Governments derive their just powers from the consent of the governed. You have neither solicited nor
received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace
does not lie within your borders. Do not think that you can build it, as though it were a public
construction project. You cannot. It is an act of nature and it grows itself through our collective
actions.
You have not engaged in our great and gathering conversation, nor did you create the wealth of our
marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide
our society more order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this claim as an excuse to
invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there
are wrongs, we will identify them and address them by our means. We are forming our own Social
Contract. This governance will arise according to the conditions of our world, not yours. Our world is
different.………..
We are creating a world where anyone, anywhere may express his or her beliefs, no matter how
singular, without fear of being coerced into silence or conformity.……….”1[emphasis added]
In 1996, with these now famous words, John Perry Barlow declared that the
Internet stood apart from the type of ordered society defined by the rules of nation-states as
had stood firm in the past. Written in response to early attempts at state control over this
radically new and prolific medium (namely, the move towards enacting the
Communications Decency Act in the United States), Barlow appeared to express the
disdain that the founders and users of the Internet had towards any form of state control
1
JOHN PERRY BARLOW, A DECLARATION OF THE INDEPENDENCE OF CYBERSPACE (1996), available at
http://homes.eff.org/~barlow/Declaration-Final.html.
1
or regulation over the Internet. Not only did they believe that nation-states had no right to
interfere with any matter relating to the Internet, they also fundamentally believed that
nation-states, in fact, could not do so even if they wished. Arguably, this defined the
‘digital libertarian’ philosophy dominating the viewpoints of many of the Internet’s key
founders and innovators, as well as its growing base of everyday users. As Lawrence Lessig
puts it; “If there was a meme that ruled talk about cyberspace, it was that cyberspace was a
place that could not be governed. That it “cannot be governed”; that its “nature” is to resist
regulation.”2
It’s been over a decade since digital libertarianism as encapsulated by Barlow’s

declaration cast its iron clad belief about the inherent resistance of the Internet to
regulation specifically, and to nation-states generally, into our consciousness. What have we
seen over all of this time? Time has not been witness to blundering nation-states trying to
regulate something such as the Internet in which they no place, and undertaking a task
impossibly beyond them. Instead, what we have seen have been critical approaches towards
understanding how cyberspace actually stands, and which have in doing so reexamined the
statements phrased in the earliest writings on the Internet by cyberlibertarians who were
excited about the Internet’s potential to create spaces and communities which appeared to
be far removed from the practices affecting real world spaces and nation-states.3 James
Boyle, a noted contemporary technology law academic and writer has said the following
while reflecting on the digital libertarian views concerning the nature on the Internet vis-à-
vis state regulation;
“For a long time, the Internet’s enthusiasts have believed that it would be largely immune from state
regulation. It was not so much that the nation-states would not want to regulate the Net, it was that
they would be unable to do so, forestalled by the technology of the medium, the geographical
2
LAWRENCE LESSIG, CODE 31 (Version 2.0, 2006).
3
See Graham Greenleaf, An Endnote on Regulating Cyberspace: Architecture vs. Law?, 21(2) UNSW LAW
JOURNAL 593, 594 (1998) [hereinafter referred to as “Greenleaf: Regulating Cyberspace”].
2
distribution of its users, and the nature of its content. This tripartite immunity came to be a kind of
Internet Holy Trinity, faith in which was a condition of acceptance into the community.”4
Digital libertarianism thus essentially based itself on several supposedly well-

accepted features of the Internet’s inherent architecture. Of the various statements
identified by Boyle, as well as by Greenleaf, these are typified by widely quoted statements
such as “the Net interprets censorship as damage and routes around it”, “In Cyberspace,
the First Amendment is a local ordinance”, and “On the Internet no-one knows you’re a
dog”.5 The digital libertarian dream as such appears to be the vision of an Internet, which
owing to its inherent unregulable nature, was beyond the nation-state, and which would
build upon and refine a social contract, creating a society existing in cyberspace which
governed itself independent of the concerns and way of horizontal thinking that had
characterized real world societies centered on the edifice of the nation-state.
Lawrence Lessig, James Boyle, Jack Goldsmith, Tim Wu, Jonathan Zittrain, and
several others comprise the modern critical technology law theorists. In their numerous
writings, they have all criticized digital libertarianism for falling into a trap of believing that
the Internet was beyond regulation, when it fact it was not. Lessig describes this as the “is-
ism” fallacy; i.e. confusing the way cyberspace is with how cyberspace must be.6 Thus, the
digital libertarians were incorrect in believing that the form of Internet architecture
prevalent then which made regulation difficult was unchangeable; the architecture of
cyberspace was just as vulnerable to change due to pressures exerted upon it.7 Furthermore
this change has not only generally affected the Internet’s resistance to regulation; the
Internet has been so affected so as to reassert the power that national governments can
4
James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 UNIVERSITY OF
CINCINNATI LAW REVIEW 279, 280 (1997) [hereinafter referred to as “Boyle: Foucault in Cyberspace”].
5
See Boyle: Foucault in Cyberspace, at 178-179, and Greenleaf: Regulating Cyberspace, at 594-597 (the first
two quotes are again products of John Perry Barlow, with the last one being a reference to a famous cartoon
carried by the New York Times sometime in the year 1996 which became iconic with regards the view
prevailing then concerning the privacy available to an Internet user).
6
LESSIG, supra note 2, at 32.
7
See Andrew D. Murray, Regulation and Rights in Networked Space, 30(2) JOURNAL OF LAW AND SOCIETY 187,
187 (2003) (who puts it across rather well by saying that “the question no longer is: can networked space be
regulated? but rather, how and by whom is it regulated”).
3
have with respect to its affairs and future. Specifically argued by Jack Goldsmith and Tim
Wu in their recent book “Who Controls the Internet?”,8 the vision of a post-territorial
order for the Internet as envisioned in the digital libertarian dream is essentially dead. Not
only can nation-states effectively utilize coercion to regulate online content and behavior,
but they have also in fact ensured that the Internet has become more and more ‘bordered’;
i.e. dependent and vulnerable to local demands and conditions so as to change its
underlying architectures at times as well.9 Thus, not only do nation-states matter, but they
in fact largely determine the shape of things with respect to content and effectively control
a medium largely considered ‘unregulable’.
After all of this one might be tempted to ask: the “digital libertarian dream” or
whatever you call it may be dead; what of it? Why does it concern us? The reason of course
is that the dominant dogma of digital libertarian thought effectively created a dangerous
belief that Internet regulation was a moot point; in that the Internet would always route
around any attempt to regulate it, so we all needn’t worry about having to act against such
regulation in a concerted manner. Having been shown the inherent fallacies of such a view,
we are now left with questions to ourselves that demand answers. Do we value those
conditions of Internet architecture that facilitated its unparalleled support for the exercise
of free speech and expression? If so, then what may threaten these conditions? Is there any
way that we can help protect these values from being eroded with respect to regulations
imposed by nation-states?
8
JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET?: ILLUSIONS OF A BORDERLESS WORLD
(2006).
9
Id, at 49-86, 183.
4
DIGITAL CONSTITUTIONALISM AND DIGITAL REALISM – UNDERSTANDING THE BASIS FOR RE-EXAMINING
HOW WE CAN CONCEPTUALIZE INTERNET REGULATION
Brian Fitzgerald provides a succinct answer to the questions with which the last
section ended. He does this by noting how he believes that the liberties of citizens in the
world of the Internet deserve no less respect or introspection as compared to how the same
is conceptualized in real space. He therefore argues that there is a need for “digital
constitutionalism”; i.e. to consider and provide a framework for understanding power
relations in the digital environment on the same lines as how traditional
“constitutionalism” itself has focused on the regulation of power, and most notably that of
the government or a public authority over a citizen.10 Keeping in mind the trend noted by
Goldsmith and Wu concerning the growth of a bordered Internet, we therefore have to
look at how we can graft digital constitutionalism into the conditions the Internet faces in
our given nation-state. In doing so, we also need to interpose what Greenleaf terms “digital
realism” into how we examine theories of cyberspace regulation, by noting the
characteristics that cyberspace possesses which distinguish it from real space, and working
towards incorporating these unique characteristics into any theoretical model.11 Digital
realism is essentially recognizing that law has the ability to regulate the Internet for either
good or evil, to put it as Greenleaf does.12
Digital constitutionalism thus urges us to try and examine how the exercise of
power with relation to Internet architecture and online content can be regulated so as to
ensure the continuance of those values relating to speech and expression which we wish to
10
See Brian Fitzgerald, Introduction xvi-xvii in 1 CYBERLAW (Brian Fitzgerald ed., 2006).
11
Greenleaf: Regulating Cyberspace, at 600.
12
Id, at 601-602.
5
preserve. It is impossible to conduct this exercise effectively unless one then fits digital
realism into the entire equation; a failure to determine the manner in which power is
being exercised to regulate, and from whom the said coercion in occurring, would
undermine any effective implementation of digital constitutionalism. In doing so,
Greenleaf’s listing of various theories of cyberspace regulation is a good point to keep in
mind.13 Specifically, this is to do with how Lawrence Lessig’s theory that the Internet is
regulated with the four constraints; laws, social norms, markets, and architecture (or, to use
the more digital jargon-based substitute term made famous by Lessig, “code”14) stands as a
counter to anti-law approaches such as Michel Foucault’s work on continuous surveillance
through architectures of social life.15 Here though, Boyle’s “Foucault in Cyberspace”16 puts
forward a better argument that helps understand the situation as present in environments
such as India, as is detailed later in this paper. Boyle focuses on Foucault’s insights
regarding the notion of ‘discipline’, specifically how the formal “Austin-ian” political
discourse centered on the relationship between the sovereign and the citizen does not
account for the actual exercise of power through a variety of non-state sources which often
depend on material and technical means of enforcement in place of legal means.17
What Boyle essentially argues is that digital libertarianism, besides its essential
fallacious assumptions regarding the Internet’s unchanging nature, also fails to understand
that regulation can take place through the exertion of power by nation-states through
indirect mechanisms. It is this warning which, if kept in mind when examining the shape
of Internet regulation in India, would best serve the cause of digital constitutionalism. As
this paper will subsequently show, the Indian state in fact regulates the Internet by defining
13
Id (detailing the “Lex Informatica” theory propounded by Joel Reidenberg, the “Net federalism” model
advocated by Johnson and Post, and then Lessig’s cyberspace regulation theories).
14
See Lessig, supra note 2, at 1-8 (A caveat of sorts:- My reference here to “code” being used as a substitute
term for architecture with respect to Lessig’s writings is merely for the purpose of crude analogical
explanation of its effect. Lessig’s entire body of work in fact treats code as a much more radical, and wider,
form of constraint on action, leading to his famous argument “code is law”. But it would still in operation
appear to be most similar to architecture if one were hell bent on comparing it to traditional and more
intellectually familiar constraints).
15
Greenleaf: Regulating Cyberspace, at 602-603.
16
Boyle: Foucault in Cyberspace.
17
Id, at 185-187.
6
the usage environment provided by non-state actors such as cyber cafés, along with
pervasive surveillance, in addition to directly mandated Internet censorship and filtering
acts. This also ties in with what Giampiero Giacommello puts forward concerning
traditions of engagement in Internet matters even by several democratic states as part of
desire to protect and shape their “network information infrastructure” or NII.18 The shape
of the Indian state’s engagement with NII matters is indicative of how the Internet grew in
India, and has determined the shape of how regulation has occurred over time along with
the shape of the relationship of private stakeholders (such as Internet Service Providers)
with Indian state agencies.
It would serve us well, however, to first understand how the nature of mediums of
communication affects their constitutional treatment vis-à-vis the protection of free speech
and expression. This of course necessitates an examination how a particular national
constitutional system in question frames its protection of free speech and expression in the
context of the nature of media and technological change.
18
GIAMPIERO GIACOMMELLO, NATIONAL GOVERNMENTS AND CONTROL OF THE INTERNET: A DIGITAL
CHALLENGE 2 (2004) (Network Information Infrastructure here including telecommunications, banking and
financial services, energy and water distribution, transportation, and critical government services.
Giacommello herein mainly examines the experience of State engagement with NII matters in several
Western democratic states).
7
MEDIUMS OF COMMUNICATION AND CONSTITUTIONAL LAW – THE SCALE AND EXTENT OF

CONSTITUTIONALLY PERMISSIBLE REGULATION BY THE STATE WITH RESPECT TO SPEECH AND EXPRESSION ON
THE INTERNET
- A SHORT PRIMER ON THE PROTECTION OF FREEDOM OF SPEECH UNDER THE INDIAN

CONSTITUTION
In India, the protection of free speech and expression is enshrined in Article

19(1)(a) of the Constitution, which states as follows
“Art. 19. (1) All citizens shall have the right to-
(a) to freedom of speech and expression;
…..”19
This is of course immediately followed by Article 19(2), which permits the
imposition of “reasonable restrictions” on this right caused by the operation of any law
made by the state in the interests of several enumerated grounds.20 This allowance for the
imposition of restrictions on the operation of the freedom of speech and expression, along
with all the other fundamental freedoms enshrined in Article 19 (1)(b) to (1)(g), has been
part and parcel of the Indian Constitution from its very beginning.21 This makes Indian
constitutional jurisprudence stand apart at the level of bare textual reading from the
jurisprudential foundations of the American Constitution, whose First Amendment does
not explicitly provide for limitations to be placed on the exercise of citizen’s rights to
19
Art. 19(1)(a), CONSTITUTION OF INDIA, 1950.
20
Art. 19(2), CONSTITUTION OF INDIA, 1950 (The grounds are; the sovereignty and integrity of India, the
security of the State, friendly relation with foreign States, public order, decency or morality, as well as with
relation to contempt of court, defamation, or the incitement of an offence).
21
As Soli Sorabjee notes, “the majority of the Founding Fathers did not accept the theory of absoluteness of
any fundamental rights, including freedom of speech and expression. They firmly believed that no freedom
could be absolute and it had to be subject to reasonable restrictions”; Soli Sorabjee, Constitution, Courts, and
Freedom of the Press and the Media 335-336 in SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE
SUPREME COURT OF INDIA 334 (B.N. Kirpal et al eds. 2000).
8
freedom of speech, and which consequently required the creation of the doctrine of
“police powers” permitting the imposition of limitations by the American State.22
This of course shouldn’t blind us to the fact that at the very beginning of the
operation of the Indian Constitution in the 1950s itself, tension arose regarding the
manner in which the text of the Constitution put in place a balance of power between
Article 19(1)(a) and Article 19(2) that the Union and state governments found unpalatable.
The noted scholar Granville Austin has tracked this early tension concerning the possible
limits of restriction of free speech here in India under the heading of how the working of
the Indian Constitution took place in the context of questions concerning the relationship
between free speech, liberty, and public order in the Republic then.23 On account of
Article 19(2) originally only providing for legislation seeking to restrict libel, slander,
defamation, contempt of court, any matter offending decency or morality, or which
undermined the security of or tended to overthrow the State, legislation passed by several
state governments in the 1950s concerning the incitement of offences and public order
were declared unconstitutional by the Supreme Court saying that in each case they were
not covered under the grounds enumerated by Article 19(2) and were hence liable to be
struck down.24
This led to the Nehru Government successfully convincing Parliament to pass the
First Amendment to the Indian Constitution in 1951 which, among other things,
increasing the grounds to include ‘incitement to an offence’, ‘public order’, and ‘friendly
relations with foreign states,’ at the same time replacing the grounds of libel and slander
with that of ‘defamation’ and the ground of “which undermined the security of or tended
22
See generally 2 Y.V. CHANDRACHUD ET AL, D.D. BASU’S COMMENTARY ON THE CONSTITUTION OF INDIA
2117-2122 (8th ed. 2007) [hereinafter referred to as “D.D. BASU”].
23
See GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN
EXPERIENCE 38 (1999).
24
Id, at 41-42 (focusing on the cases of State of Bihar v. Shailabala Devi (3) SCR 654, Brij Bhushan v. State of
Delhi AIR 1950 SC 129, and the Crossroads case 1950 (1) SCR 602).
9
to overthrow the State” with that of ‘in the interests of the security of the State’.25 This was
supplemented by the Sixteenth Amendment that was pushed through in 1963, which
added the ground of ‘the sovereignty and integrity of India’ to the list contained in Article
19(2) upon which the State could restrict free speech by legislation.26 Notably, despite
proposals made earlier during the process of drafting the First Amendment to the Indian
Constitution27, the qualifier imposed by Article 19(2) with respect to the restrictions having
to be in the nature of ‘reasonable restrictions’ was never touched and, as of today, this
requirement seems to be currently set in stone.
During and after all the aforesaid legislative attention to Article 19(2), Indian free
speech jurisprudence has time and again looked at what constitutes a valid exercise of the
power to curtail free speech and expression by the imposition of reasonable restrictions by
the State. As summarized by D.D. Basu in his expansive commentary on Indian
constitutional law, the following are the conditions identified by the Indian judiciary as
being the conditions to judge whether a restriction of any of the fundamental rights under
Article 19 is constitutionally valid;
a) It must be imposed by law:
b) Such law must be made by the ‘State’.
c) Such law must be valid.
d) The restriction must be proximately related to any of the grounds specified in
the limitation clauses put in place by Article 19(2)-(6), which here would
specifically be those grounds mentioned by Article 19(2)
e) The restriction imposed by the law must be ‘reasonable’.28
25
Id. On a side note, one can’t help but be slightly amused at the irony of how the First Amendment to the
Indian Constitution went towards increasing the power of the State to regulate speech whereas the earlier,
and more famous First Amendment to the American Constitution granted what was then seemingly
unrestricted protection of speech from regulation by the US Congress and other Federal authorities.
26
Id, at 50.
27
Id, at 43-49, 50 (detailing the early moves within the Nehru Cabinet to secure the removal of the textual
requirement of restrictions under Article 19(2) having to be “reasonable”, and its final failure to be
incorporated in the draft of the First Amendment finally put before Parliament, along with the lack of any
subsequent attempt in this regard by the Shastri Government when seeking to pass the Sixteenth
Amendment).
28
D.D. BASU, at 2136.
10
In the context of the manner in which speech regulation takes place in India, it is
important to note condition (a) above. Article 13(3)(a) of the Constitution of India defines
the term ‘law’ to include valid subordinate legislation; this would not allow for the
Executive to impose any restriction on any fundamental right granted by Article 19(1) if
there is no legislative authority for the same. Essentially, a mere executive or departmental
instruction that does not flow from a valid legislative act cannot be used to restrict any
Article 19(1) right.29 Notably, this does not require the legislature to pass a law solely for
the purpose of imposing the restriction as it can be imposed by a general law; however such
general law is then subject to conformity with all the other conditions detailed above in the
context of restriction of the rights enshrined under Article 19.30
- THE EFFECT OF THE NATURE OF A MEDIUM OF COMMUNICATION ON ITS TREATMENT

UNDER FREE SPEECH LAW
Besides these general overarching conditions regulating the ability of the State to
restrict the exercise of an Article 19 fundamental right, there has also been the question of
what effect the nature of the medium in question has with respect to the State’s power to
impose restrictions under Article 19(2) on the exercise of free speech and expression.
Freedom of speech law has been greatly affected by the nature of the medium in which its
subject matter, i.e. speech and expression, have been taking place. Owing to this, the shape
and nature of the constitutional protection afforded to speech and expression has varied
according to the characteristics of the medium in question. How easy is it to publish and
29
Id, at 2136-2137.n80-n84 (based on a reading of numerous Supreme Court judgments from the 1950s till
the present, mostly focusing on situations where the government agencies, or other State authorities such as
the police had in effect restricted Article 19(1) rights by means of executive instructions such as notifications
and regulations not being in the nature of subordinate legislation from legislative authority).
30
Id, at 2137 (based on the judgment of the Supreme Court in Babulal v. State of Maharashtra (1961) 3 SCR
423, concerning an order passed by a Magistrate under Section 144 of the then Code of Criminal Procedure
prohibiting the formation of assemblies of people in a town due to disturbances between labour unions. The
Court held that Article 19(2) to (6) do not require the enactment of a law solely for the purpose of placing
the restrictions mentioned in them. Of course, one should remember that Section 144 provided explicitly for
a power to put in place such restrictions within certain parameters, so it was at least somewhat specific in
nature with respect to granting a power to restrict albeit not stating the exact subject matter and import of
any such restriction.)
11
reproduce content on the media in question, and what costs are incurred? How does the
medium in question represent speech? What is the reach of the medium? Do individuals
have any choice in the selection of the content to which they can be exposed via the
medium in question? In a nutshell, these are the questions that courts have focused upon
in case after case, leading to the establishment of different standards in restricting speech
and expression across different media.
The best example of such differing standards with regard to the protection afforded
to speech and expression made via different mediums is the manner in which courts have
treated broadcast media. In the United States, the protection afforded to speech and
expression in broadcast media has been severely curtailed as compared to protection
afforded to such speech in traditional print media. The Federal Communications
Commission (FCC) has been granted powers to regulated on-air content of an incredibly
wide and chilling scope because U.S. courts have held that broadcast media is more wide-
reaching, invasive, and limited in terms of available spectrum so as to legitimize greater
State imposed restrictions on it, as exemplified by decisions such as that in FCC v. Pacifica
Pound31.32 Therein, the US Supreme Court essentially accepted that the FCC could regulate
speech which was not obscene within the meaning accorded to that standard in law and
was merely indecent despite prior precedent that the State could only curtail the exercise of
speech when the same was obscene due to the nature of broadcasting, a ‘new media’ then
as compared to traditional means of communication based on physical media.33
31
438 U.S. 726 (1978) (this pertained to the famous ‘Filthy Words’ broadcast, wherein a monologue by
George Carlin containing seven obscenities meant to satirize the santization of content on television and
radio was publicly broadcast by Pacifica radio station WBAI, causing the FCC to penalize the station on
receiving a complaint against the broadcast).
32
See Mark A. Lemley, Place and Cyberspace, 91 CALIFORNIA LAW REVIEW 521, 531 (2003) [hereinafter
referred to as “Lemley: Place and Cyberspace”].
33
See FCC 438 U.S. 726, at 727-728 (As stated; “Of all forms of communication, broadcasting has the most
limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the
uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend
into the privacy of the home and it is impossible completely to avoid those that are patently offensive.
Broadcasting, moreover, is uniquely accessible to children.”)
12
In India, questions concerning whether broadcasting was within the protection

afforded by Article 19(1)(a) were not dealt with by courts until the 1980s owing to, as
noted by Vikram Raghavan, the fact that the government’s stranglehold over broadcasting
was only de-regulated (to some extent) in the 1980s.34 Raghavan coincidentally argues that
while the courts did not engage with any of the free speech questions that concerned
broadcast media, they did willingly accept different standards for media besides that of
print as typified by their acceptance of film censorship in cases such as K.A. Abbas v. Union
of India35 among others,36 an observation which appears quite logically sound.37 Therefore,
it would seem that Indian courts essentially held that the degree to which a restriction was
‘reasonable’ for the purposes of Article 19(2) did in fact depend on the nature of the
medium in question, at least with respect to visual media such as cinema.
Going back to broadcasting, it is important to note Raghavan’s observation that

post the de-regulation of broadcast media (or rather, alongside that process) various Indian
courts, including the Supreme Court, created a regulatory framework concerning access to
broadcast media centered around the protection of free speech and expression afforded by
Article 19(1)(a).38 However, while noting the aforementioned position in the US where
terrestrial broadcasting is afforded a lesser degree of First Amendment protection,
Raghavan concludes that the position in India regarding the reduction of protection with
respect to Article 19(1)(a) read with Article 19(2) is not clear. This flows from the nature of
the opinion rendered by Sawant, J. in the case of Secretary, Ministry of Information and
Broadcasting v. Cricket Association of Bengal.39 However, at the very least, it appears that
Indian courts like their earlier US counterparts do entertain a few doubts as to whether
34
See Vikram Raghavan, Reflections on Free Speech and Broadcasting in India, at in HUMAN RIGHTS AND
CONSTITUTIONAL EMPOWERMENT (C. Raj Kumar et al eds., 2007).
35
AIR 1971 SC 481.
36
Raghavan, supra note 26, at 102-104.
37
One should note the emphasis on the accessibility and impact of audio-visual media upon “common
people” that permeate such judgment concerning film censorship, and the clear distinction that judges are
then willing to draw between such media and the traditional world of print. A good example of this would be
Hidayatullah, J.’s opinion in the aforementioned case of Abbas AIR 1971 SC 481.
38
Id, at 104-122.
39
AIR 1995 SC 1236.
13
comparatively ‘new media’ such as broadcasting should enjoy exactly the same extent of
protection under Article 19(1)(a) as traditional media such as print.
How, then, is the Internet to be treated? Does it fall within the ambit of the
constitutional protection of speech and expression? If so, is it treated any differently from
traditional media with respect to the scope and ambit of permissible State-imposed
restrictions? Does its existence in any way alter the traditional principles of constitutional
jurisprudence concerning freedom of speech and expression? Several insights into the
answers to these questions can be found in the decision laid down by the U.S. Supreme
Court in the famous case of Reno v. American Civil Liberties Union40 (commonly referred to
as Reno v. ACLU) concerning the constitutionality of the Communications Decency Act –
the same piece of legislation which provoked Barlow into expressing digital libertarian
disdain and dissent towards any attempt by the State to regulate the Internet in the form of
his Declaration of the Independence of Cyberspace with which this paper began.
Confirming that the statute in question was indeed unconstitutional, the US

Supreme Court held that not only was the Internet deserving of First Amendment
protection, but also that it was of a nature possessing characteristics which set it apart from
broadcast media. Quoting other past cases such as Sable Communications of California v.
FCC41 to show that the precedent concerning lowered standards of constitutional
protection of speech established by the Pacifica case was indeed linked to the nature of the
medium, the US Supreme Court held that the nature of the Internet was different from
that of broadcast media to the extent that regulating Internet speech as per a lower
standard than that of obscenity was not acceptable. Additionally, the Internet was also not
40
521 U.S. 844 (1997).
41
492 U.S. 115 (The case essentially pertained to an amendment of the Federal Communications Act by the
US Congress prohibiting both obscene and indecent messages made by ‘Dial-a-porn’ telephone operators.
The Court held that extending such regulation to cover even messages which were not obscene and merely
indecent as per the standards of the law was unacceptable. The earlier precedent laid down in the Pacifica
case permitting the lowering of the constitutional protection of freedom of speech was distinguished from,
holding that with respect to telephone conversations active steps were required by a party and the nature of
the medium more or less reduced the chance that minors could be passively subjected to such content. Thus
any attempt to regulate it would constitute an unacceptable restriction on the right of adults to seek out and
engage in such speech).
14
a ‘scarce’ commodity like broadcast spectrum, and it also did not “invade the home” in the
same way as broadcast media such as radio and television (with their attendant risks of
individuals such as minors coming across indecent content by accident) did, as it required
affirmative steps involving deliberation and direction in order to receive information.42
They therefore rejected the analogy with broadcasting and its contingent lower degree of
protection of speech and instead held that it was similar, though not identical, to the
press.43
Reno v. ACLU represents a watershed with respect to how free speech law was
interpreted by US courts to adapt constitutional principles to take into account
technological change affecting the manner in which speech and expression takes place. No
Indian court has yet directly adjudicated on the constitutional questions concerning speech
and expression on the Internet. Yet, the Supreme Court of India has acknowledged the
change brought about in certain traditional principles which govern principles related to
the constitutional protection of speech and expression due in large part to the Internet.
This is contained in the recent case of Ajay Goswami v. Union of India,44 where the judgment
touched upon the Internet in connection with how ‘contemporary standards’ in
connection with obscenity law are to be determined in a given time period. The Court held
that the traditional focus on using contemporary standards to help determine whether the
speech in question is obscene is irrelevant now in the Internet age where such tests could
dangerously lower standards to that of the lowest and most sensitive group, a position
which the Supreme Court of India justified by citing the decision of the US Supreme
Court in Reno v. ACLU.45
While noting this alteration in traditional principles concerning the standards used
in determining the extent of acceptable regulation of obscene speech, the Supreme Court
42
See ERIC BARENDT, FREEDOM OF SPEECH 455 (2005). See also MADELEINE SCHACTER, LAW OF INTERNET
SPEECH 87-89 (2002).
43
Id, at 455-456.
44
(2007) 1 SCC 143.
45
Id, at 168-169
15
itself did not explicitly talk about the status of speech and expression on the Internet
within India’s Article 19(1)(a) and 19(2) framework. The only time this was touched upon,
and that too in an indirect way, was in a Committee Report prepared in connection with a
Public Interest Litigation (PIL) petition taken up by a bench of the Bombay High Court in
2001.46 The PIL came about on the basis of a letter written by Mr. Jayesh Thakkar and Mr.
Sunil Thacker to the Chief Justice of the Bombay High Court complaining about the
proliferation of pornographic websites on the Internet, which was taken in and treated as a
suo motu writ petition, in which a Division Bench of the High Court ordered the
appointment of a committee to look into measures of protecting minors from unsuitable
Internet material.47 Herein, while referring to the question of whether the proposal of site-
blocking (defined to mean the “physical prevention of access to website found to be
pornographic”)48 as propounded by the petitioners was feasible technically and legally, the
Committee examined the possible legal restraints on regulating the Internet via site-
blocking. It disapproved of the proposal, noting that;
“… site blocking without any objective guidelines would amount to a conferment of

uncanalised power. The Internet is a new medium and, while it brings its own set
of issue and problems, equally is not necessarily amenable to restrictions applied to
earlier (‘legacy’) technologies and media. Inherent in the New Age of the Internet is
an expanded freedom, flexibility and malleability. To strike at these is to strike at
the very foundation of the medium”.49
The Committee specifically stated that it had referred to the decision in

subordinate court in the matter pertaining to the Communications Decency Act which was
later finally affirmed by the US Supreme Court in Reno v. ACLU; this was the decision of
46
Suo Motu Writ Petition No. 1611 of 2001, High Court of Judicature at Bombay.
47
Archana Tyagi et al, Report of the Committee Appointed by the Bombay High Court in Suo Motu Writ Petition No.
1611 of 2001 to Recommend Measures to Protect and Shield Minors from Pornographic and Obscene Material on the
Internet 1 (2002), available at http://www.cyquator.com/html/vol1.pdf (visited on 20-02-08; on file with the
author) [hereinafter referred to as “BOMBAY HIGH COURT COMMITTEE REPORT”).
48
Id, at 8.
49
Id, at 12.
16
the US District Court for the Eastern District of Pennsylvania in what is popularly termed
as the Reno I decision50.51 It paid particular attention to that portion of the judgment that
had pointed out that sexually explicit material on the Internet was seldom accessed by
accident and usually required a series of affirmative steps to access and how the nature of
the medium was that once content was posted on the Internet, it would be available to all
Internet users word-wide, making community based restriction nearly impossible.52 The
Committee noted how this ruling by the lower court that the Communications Decency
Act was unconstitutional was upheld by the US Supreme Court, and how such blanket
restrictions were detrimental to the efficacy of the Internet along with being judicially
unacceptable.53 It therefore finally rejected the site-blocking proposal “as being technically
and legally unfeasible and not salutary”.54
The Committee then examined other methods to protect minors from unsuitable
Internet material primarily in connection with cyber-café regulation in addition to
providing for filtering software use by parents for home computer usage. The most
important point that needs to be mentioned here is that the overall findings of the
Committee, along with its recommendations, seemed to have been approved by the High
Court from its directions for the publication and implementation of the report as per its
order of February 13th, 2002.55 Thus, it would seem that the Bombay High Court appears
to endorse the view of the Committee with respect to the nature of the Internet, and that
the same meant that site-blocking without objective guidelines was not permissible under
the Constitution. In this manner, the constitutional protection that the Internet seems to
attract in the view of the High Court is the same as that laid down in US free speech law as
per Reno v. ACLU, though this is a tenuous link based only on a seemingly implicit
endorsement of the views of an Expert Committee by the Bombay High Court.
50
929 F. Supp. 824 (E.D. Pa. 1996)
51
BOMBAY HIGH COURT COMMITTEE REPORT, at 12.
52
Id, at 12-15
53
Id, at 15.
54
Id, at 18.
55
High Court Order dated 13.2.2002 in Writ Petition No. 1611 of 2001, per C.K. Thakker, C.J. & S.
Radhakrishnan, J., available at http://www.cyquator.com/html/vol1.pdf (visited on 20-02-08; on file with the
author)
17
In addition to this of course, past decisions of the Supreme Court of India have
indicated a willingness to accept that the protection of free speech and expression afforded
by Article 19(1)(a) extends to all possible media where such speech and expression can take
place. An example of this would be the judgment of Ahmadi, J. in Life Insurance Corporation
v. Manubhai Shah56 where it was held that Article 19(1)(a) had to be broadly construed, as
“it includes the right to propagate one’s views through the print media or through
any other communication channel, including radio television” [emphasis added]57
This broad view as the general applicability of Article 19(1)(a) was further cemented
by the view of Sawant, J., in the aforementioned Cricket Association case58 where it was said
that;
“The freedom of speech and expression includes the right to acquire information
and to disseminate it… The right to communicate, therefore, includes the right to
communicate through any media that is available whether print or electronic or
audio-visual such advertisement, movie, article, speech etc…”59 [emphasis added]
This view as to an expansive extent of Article 19(1)(a) covering all forms of media
was reiterated by the Supreme Court in the recent case of Director General, Directorate
General of Doordarshan v. Anand Patwardhan60. We thus see that the scenario concerning the
applicability of the constitutional protection of free speech and expression to content on
the Internet appears somewhat positive, given the willingness of the Supreme Court in past
56
(1992) 3 SCC 637
57
Id, at Para 21.
58
Cricket Association, AIR 1995 SC 1236.
59
Cricket Association, AIR 1995 SC 1236, at Para 51 as cited in VIKRAM RAGHAVAN, COMMUNICATIONS
LAW IN INDIA 144 (2007).
60
(2006) 8 SCC 433, as quoted in ANNUAL SURVEY OF INDIAN LAW 95-96 (K.N. Chandrashekharan Pillai et al
eds. 2006) (“by virtue of Article 19(1)(a) everyone shall have the right to freedom of expression which has to
include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either
orally, in writing or in print, in form of art or through any other media of his choice”).
18
cases to extend the applicability of Article 19(1)(a) to claims arising with regards to the ‘new
media’ of that moment. The question of course that remains unclear would be with regard
to the extent of protection afforded and its shape; essentially, what would courts consider
as “reasonable” restrictions that the State could impose on online speech and expression?
- A FEW NOTES ABOUT PRIVACY LAW AND SURVEILLANCE
Another critical issue that we have to examine and keep in mind in order to analyze
State actions with regards Internet content regulation is how the law regulates interception
and surveillance, especially how it operates under the ambit of constitutional restrictions.
Interception of communications messages and content along with other surveillance
methods adopted by State agencies can, and in fact often do, be subjected to regulation by
statutory regimes which are created to (at least on the surface) protect the constitutional
rights of citizens.
In this regard, the primary issue revolves around the constitutional protection of
the privacy of citizens. The existence of a right to privacy under the ambit of Article 21 of
the Indian Constitution61 has been a matter of considerable debate focused on the
Supreme Court’s cases on the point; it does in fact now arguably exist.62 While not as solid
a base to develop doctrine to protect privacy rights in our constitutional jurisprudence as
compared to the United States63 and the European Union64, it has provided a basic
61
Art. 21, CONSTITUTION OF INDIA, 1950 (“No person shall be deprived of his life or personal liberty except
according to procedure established by law”).
62
See e.g. RAGHAVAN, supra note 59, at 755 (basing it on the Supreme Court’s judgments in Gobind v. State of
Madhya Pradesh (1975) 2 SCC 148 and R. Rajagopal v. Tamil Nadu (1994) 6 SCC 632).
63
With its Fourth Amendment of the US Federal Constitution creating an explicit protection of citizen’s
privacy against unreasonable and unsanctioned search and seizure by the State, the United States has a well-
developed and comprehensive body of jurisprudence in this area that’s been built upon for a much longer
period of time.
64
Almost all European countries (and many other countries which lie outside the region) are obliged to
protect privacy in accordance with Article 8 of the European Convention of Human Rights; the ECHR
system has dealt with numerous complaints centered on violations by member state agencies of this right to
privacy. In addition, the Commission of the European Union had directly created a regime to protect privacy
in respect of data through its Directive 95/46/EC on the protection of individuals with regard to the
processing of personal data and on the free movement of such data).
19
foundation upon which Indian courts have created a system of norms acting to limit the
State’s actions in this sphere.
Perhaps the most important developments in this regard in India have been the
cases concerning communication interception carried out by government agencies via
telephone tapping. As has been noted by Vikram Raghavan, though being of the status of a
fundamental right under Article 21 of the Constitution, the right to privacy was not
codified or expressly incorporated in any of the principle statutes that regulate
communications in India. The only exceptions to this were a few sections in the Indian
Telegraph Act, 1885 which provided a few rudimentary provisions to protect
confidentiality of communications along with the earlier Telegraph Rules.65 What the
Telegraph Act did expressly provide for was for the power of surveillance and interception
to the government; the power was granted by Section 5(2) of the Act to the Central
Government, state governments, or an authorized government officer to order the non-
transmission, interception, detention, or disclosure of the communication in question if
the two circumstances concerning public emergency and the interest of public safety were
satisfied.66 Such actions would have to be supported by appropriate reasons recorded in
writing, and the category of government-accredited correspondents were to be exempted
generally from such communications interception or detention.67 Importantly, sub-clause
(b) of the Section provided the Central Government with the power to frame rules as to
the precautions to be followed to prevent improper interception or disclosure of
messages.68
It was these sections of the Telegraph Act that were at the center of attention before
the Supreme Court in PUCL v. Union of India69, where the Peoples Union for Civil
65
See . RAGHAVAN, supra note 59, at 757 (Specifically, Sections 24 and 25 of the Telegraph Act punishing
intrusions upon telecom premises to unlawfully learn the contents of a message and removal/tampering of
telegraph equipment with intent to intercept a message)
66
Id, at 759.
67
Id.
68
Id.
69
(1997) 1 SCC 301.
20
Liberties (PUCL) filed a writ petition concerning various incidents of telephone tapping by
government agencies, and called upon the Court to declare Section 5(2) of the Telegraph
Act unconstitutional as it failed to incorporate adequate safeguards. PUCL asked that in
the alternative, the section should be read down by incorporating guidelines to put in place
procedural safeguards. The government countered by averring that such unauthorized
transgressions were rare and dealt with when detected, and that striking down the section
would prejudice the nation’s security and public order.70 The Court, thus faced with two
compelling competing interests, took what has been described as the middle path.71 It
upheld that Article 21 embodied a right to privacy which would be infringed upon by
telephone surveillance if the same was not done by procedure established by law, and also
noted that telephone tapping constituted a violation of Article 19(1)(a) with respect to the
right to express oneself, which included people talking on telephones.72 The Court then
went on define what ‘public emergency’ and ‘public safety’ meant in the context of Section
5(2) of the Telegraph Act and that the Government had to prove the existence of either
before it could order tapping to take place. Most importantly, the Court held that in
addition to this there was a requirement for procedural safeguards on the exercise of
Section 5(2) powers and that since the Government had not as of then framed any rules,
the Court framed a whole set of guidelines in this regard73 to protect privacy.74 These
guidelines were transformed into notified rules by the Central Government’s codification
70
Id, at Para 7.
71
See RAGHAVAN, supra note 59, at 760.
72
Id. See (1997) 1 SCC 301, at Para 20 (“When a person is talking on telephone, he is exercising his right to
freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions
under Article 19(2) would infract Article 19(1)(a) of the Constitution.”. Essentially, the Court was willing to
extend the rubric of Article 19(1)(a) to mean that even the fact that one’s telephone conversation was being
intercepted, one’s right to free speech was being violated. Possibly, this was based on the premise that such
interception of what would normally be regarded by the speakers concerned as a private conversation would
have negatively affect their willingness to freely express themselves if they suspected the same were occurring.
Essentially, this would seem to be an embodiment of the classic ‘chilling effects’ doctrine used often in free
speech law).
73
Id, at Para 35 (A set of nine comprehensive guidelines as to when, who, and how such interception orders
could be issued, along with the period for which such interception could take place, the manner in which
records were to be kept, as well as the membership, role, and powers of the Review Committee for such
orders).
74
See RAGHAVAN, supra note 59, at 760-761.
21
and insertion of these norms as Rule 419-A by an amendment of the Telegraph Rules in
1998.75
The Supreme Court therefore set in place a regulatory regime for interception of
information via telephone tapping taking place under Section 5(2) of the Telegraph Act.
Importantly, at that time, interception was taking place mainly via telephone tapping that
was being physically done by Mahanagar Telephone Nigam Limited (MTNL), a state-run
public sector utility. In 2006, the Supreme Court was faced with the need to examine this
same area of law with regards tapping being performed by private telecom providers
ostensibly under the directions of the government; this was put forward vide a writ petition
in Amar Singh v. Union of India76. The case is still ongoing, so a final resolution on the issue
as to whether the guidelines under Rule 419-A apply to private telecom providers cannot
be made. The case is, however, significant with respect to the Government’s response to
the matter. During the proceedings, the Government issued guidelines concerning the
protection of privacy of communications in private networks, and later stated in an
affidavit that the Telegraph Act would be amended to take into account the increasing role
of the private sector in telecom services (which have till date not been announced).77
Indian courts have not yet examined the more specific question as to what
guidelines and norms would operate with respect to interception of Internet
communication traffic by the Indian State. Currently we do have examples of foreign
precedent on the matter. In the United States, the order in Tash Hepting v. AT&T
Corporation78, an ongoing case connected to several other cases all pertaining to the Internet
interception measures in the National Security Agency’s warrant-less surveillance
programme79, clearly goes towards establishing that Internet communication in the United
75
Id, at 762-763 (explaining the content of the rules in detail).
76
W.P.(Civil) No. 39 of 2006.
77
78
439 F. Supp. 2d 974 (N.D. Cal 2006) (Order by Walker, J. denying motion to dismiss suit).
79
See http://www.eff.org/issues/nsa-spying (visited on 23-02-08) (an introduction by the Electronic Frontier
Foundation to the entire matter concerning the NSA’s programme and the legal challenges mounted against
it before numerous jurisdictions in the United States).
22
States is constitutionally protected from unlawful State interception and surveillance. With
respect to the European human rights regime, the decision in Copland v. The United
Kingdom80 established that public bodies in ECHR signatory countries such as the United
Kingdom could not monitor and intercept Internet communication unless sanctioned by
law as the same would violate the right to privacy that would extend to such
communications media under the Court’s interpretation of Article 8 of the Convention. A
recent decision of the Federal Constitutional Court of Germany81 seems to affirm that
such constitutional protection to computer data and Internet communication also exists
under the right to privacy contained in the German constitution.82 It would seem more
than arguable that the general principles of constitutional protection to privacy in
communications in India would indeed extend to the Internet as well, given the nature of
the approach followed by the Supreme Court of India in past cases, as well as the
persuasive value of the law on this subject in the United States and Europe.
In summing here, what we have are only hints and the outlines of a constitutional
approach here in India that has yet to explicitly show how it can engage with today’s new
media, and with the Internet in particular. This of course is because Indian courts have
never had to deal with has been the actual manner in which the Indian state has regulated
speech and expression on the Internet. The way in which this has occurred and the
attendant constitutional concerns it raises are dealt with in the following sections.
80
Application no. 62617/00 Eur. Ct H.R. (2007).
81
BVerfG, 1 BvR 370/07 vom 27.2.2008, Absatz-Nr. (1 - 333), available at
http://www.bverfg.de/entscheidungen/rs20080227_1bvr037007.html
82
See Associated Press, Germany’s highest court clamps down on government computer surveillance, SILICON
VALLEY.COM, 27th February 2008, available at
http://www.siliconvalley.com/news/ci_8379036?nclick_check=1.
23
UNDERSTANDING THE LEGAL REGIME AND POLICY FRAMEWORK FOR INTERNET REGULATION IN INDIA
To understand how Internet content regulation and surveillance here has been
taking place it would be prudent that before going into the intricacies of the subject one
remembers that the regulatory regime for the Internet in India has been deeply connected
with the way Internet services have been allowed to grow here. In this regard, the difference
in how the Internet services sector existed and was regulated before and after 1999-2000 is
of key importance. This evolutionary process has been intimately tied in with how the
policy framework and legal regime for most Internet matters here in India has developed;
understanding this is crucial in understanding the context in which State directed acts of
Internet content regulation and surveillance have and are continuing to take place in
India.
- THE PERIOD LEADING UP TO 1999-2000: THE DOMINATION OF THE STATE OVER THE
INTERNET SERVICES SECTOR AND ITS SUBSEQUENT LIBERALIZATION
The turn of the millennium stood out for the Internet in India in more ways than
one. Most importantly, this was with respect to one of the simplest aspects with relation to
how we engage with the Internet everyday, namely how we access it. The first way by which
the Internet became accessible in India was through the Education and Research Network
(more popularly referred to as ERNET) operated by the then Department of Electronics of
the Government of India in association with several technical and educational institutions
24
with funding provided by the United Nations Development Programme.83 Besides the
issuance of e-mail license to private entities in early half of the 90s84, the next major change
in the Internet services sector was when the then state-owned enterprise Videsh Sanchar
Nigam Limited (VSNL) beginning to offer Internet services via subscription plans to the
general public in August 1995.85 VSNL enjoyed a monopoly over international telecom
services; this coupled with the fact that ERNET was also a government run programme
essentially meant that Internet access was solely provided by the State during that early
period of time.
The legal regime regulating this at that point for all purposes then essentially
belonged to the realm of contract law in the form of the terms of service contained in the
standard user agreement for VSNL Internet access services, perhaps supplemented by a
theoretically likely but not explicit extension of the ambit of the Telegraph Act. Most
importantly, the State could regulate access to Internet content via its own more-or-less
directly controlled instruments, such as VSNL and ERNET, without the need to coerce
non-state parties into executing such actions.
The New Internet Policy of 1998 allowed private companies to apply for ISP
licenses and provoked the removal of VSNL’s monopoly over providing Internet access,
though it didn’t greatly deregulate all aspects of the sector as the gateways providing
international connectivity were still controlled by VSNL and could only be leased by
private parties.86 This however was soon opened up by the Government’s publication of
Internet services guidelines in response to a successful legal challenge, with these greatly
relaxed conditions being incorporated in licenses being issued to ISPs by the Department
83
See ERNET, About Us, available at http://www.eis.ernet.in/aboutus.htm (visited on 22-02-08).
84
85
Id. See also OpenNet Initiative, Country Profile: India 2 (2007) [hereinafter referred to as “ONI: INDIA
PROFILE”], available at http://opennet.net/sites/opennet.net/files/india.pdf (visited on 22-02-08, on file with
author).
86
See RAGHAVAN, supra note 59, at 474.
25
of Telecommunications apparently under Section 4(1) of the Telegraph Act.87 Then, in

1999 the Information Technology Bill was laid before Parliament which enacted it into law
in 2000.
- ISPS LICENSES AS REGULATORY INSTRUMENTS
These license policies represent the first clear attempt by the Indian State to
explicitly put into place a framework by which it could exercise power via textual
instruments to regulate ISPs. The terms of these licenses put in place a whole host of
conditions as to who could apply to provide the various categories of Internet services
listed, the manner in which these services can be operated, and the duty cast upon the
provider to cooperate with State authorities with respect to several matters. Using the legal
terminology of contract law, with the Department of Telecommunications being the
licensor and the private party desiring to provide Internet services being the licensee, these
licenses are filled with numerous conditions that the licensee has to satisfy and adhere to.
Of course, considering the aforesaid claim by the Department of Telecommunications that
these licenses are being issued under the provisions of the Telegraph Act88, they represent
an example of the use of contractual terms flowing from the authority granted by public
law.
These licenses have been modified and amended by the Department of

Telecommunications numerous times across the years since the Internet Policies of 1998
and 199989, but still reflect a particular approach towards Internet regulation by the State.
For example, the license for ISPs establishing international gateways mandates that they
must obtain security clearance, and cannot be allowed to set up operations in security-
87
Id, at 474-475 (noting the context and effects of the decision of the Delhi High Court in Union of India v.
TRAI (1998) 3 Comp. L.J. 400 (Del)).
88
Id.
89
See http://www.dot.gov.in/isp/ispindex.htm and http://www.dot.gov.in/ispt/isptindex.htm (visited on 22-
02-08) (being the index pages of the Department of Telecommunications for various categories of ISP licenses
for internet access with and without internet telephony respectively).
26
sensitive areas.90 More important, several of the licenses mandate measures as to the duty
of the ISP with relation to the content traveling through its network. These include express
provisions directing ISPs to comply with website blocking requests, and in-depth
comprehensive procedures and strictures as to surveillance and interception of Internet
communication flowing through their network on State direction.
Website-blocking exists as a mandated provision for all categories of ISPs, i.e. for
international gateway providers, submarine-cable landing stations, and for regular providers
under the Internet guidelines for their respective licenses, though the procedure as to how
this is to take place is not very clear aside from the point that such actions would be
directed to be done by the Department of Telecom & IT of the Union Government.91 In
addition to this, these licenses and guidelines have in print mandated what would appear
to be a truly extensive system for the facilitation of surveillance and monitoring by the
State of all Internet usage data and traffic flowing through such licensed ISP networks.
They call for data retention as well as the installation and maintenance of both software
tools and hardware facilities allowing for such monitoring at the physical premises of ISPs
themselves that can be accessed by security agencies.92 The main restriction imposed on
90
See Department of Telecommunications & IT, Guidelines and General Information for Setting up of
International Gateways for Internet, Clause I(11) (available at
http://www.dot.gov.in/isp/guide_international_gateway.htm) [hereinafter referred to as “DOT GATEWAY
GUIDELINES”). See also Department of Telecommunications & IT, Guidelines and General Information for Grant
of License for Operating Internet Services, No.820-1/2006-LR dated: 24th Aug, 2007, Clause 8(xviii) (available at
http://www.dot.gov.in/isp/Internet%20Service%20Guideline%2024-08-07.doc, visited on 22-02-08)
[hereinafter referred to as “DOT ISP GUIDELINES”]
91
See DOT GATEWAY GUIDELINES, at clause I(14) (“The ISP should block Internet sites and individual
subscribers, as identified by Telecom Authority”). See also DOT ISP GUIDELINES, at clauses 27, 34 (the first
clause relates to the duty of the ISP to prevent the flow of “obscene, objectionable, unauthorized” content
among others through its network and the latter clause explicitly states that “the ISP licensee shall block
Internet sites and individual subscribers, as identified by Licensor”), as well as Department of
Telecommunications & IT, Guidelines and General Information for Setting up of Submarine Cable Landing
Stations for International Gateways for Internet, clause I(15) (available at
http://www.dot.gov.in/isp/landing_station.doc, visited on 22-02-08) (hereinafter referred to as “DOT
LANDING STATION GUIDELINES”)(“The ISP licensee shall block Internet sites and individual subscribers, as
identified by Telecom Authority”).
92
See DOT ISP GUIDELINES, at clauses 8(xi), 8(xii), 8(xiii), 8(xiv), 8(xix), 8(xx), 29 (the last clause in particular
explicitly deals with specifying monitoring facilities in detail, calling for remote access and installation of
monitoring equipment at the physical premises of the ISP itself). See also DOT GATEWAY GUIDELINES, at
clause III, as well as DOT LANDING STATION GUIDELINES, at clause III (like the general ISP guidelines, two
27
paper vis-à-vis the usage of these mandated monitoring facilities is centered on limiting the
authorization of such monitoring to a select rank of civil servants; namely only the Union
Home Secretary of Home Secretaries of the States or Union Territories can authorize such
actions.93
As an aside, the interesting thing to note about the usage of these license policies
and guidelines (all of which essentially flow from the Internet Policy of 1998, as noted in
the preface of nearly all of these documents themselves) as regulatory instruments is the
manner in which the State seemingly chooses to characterize the same. On the basis of
statements concerning what regulatory approach it follows concerning the Internet, the
State seems to take pains to have such license requirements and guidelines characterized as
conditions imposed on ISPs in the nature of minimum necessary requirements called for
due to conditions prevalent in India.94 In this, it would appear to especially in no way want
these regulations to be characterized to be in the nature of restrictions imposed on content
or in any other way affecting the freedom of Internet users here.95
Of course, this might be in response to the criticism it had faced after certain recent
instances of censorship and filtering which brought attention to its policy towards Internet
content; the incidents in question have been dealt with later in this paper in detail. But, in
essence, what the State seemed to have wanted to avoid was having to create a specialized,
dedicated regulatory framework for the Internet, instead preferring to mix it in with other
provisions relating to a myriad range of requirements and procedures inherent in such
license relationships, thus also avoiding public debate and discussion on such regulation.
categories of conditions exist- one for ISPs having outbound router capacities exceeding 2mbps and another
for those with outbound capacities lower than that figure. Essentially, ISPs of the first category which deal
with more traffic due to their higher outbound capacities are subject to a greater degree of regulation with
corresponding higher costs of equipment).
93
See DOT ISP GUIDELINES, at clauses 8(xix) (“In order to maintain the privacy of voice and data, monitoring
shall only be upon authorisation by the Union Home Secretary or Home Secretaries of the States/Union
Territories”).
94
Interview with Dr. Gulshan Rai of the Department of Telecommunications & IT, 29-06-07 (transcript
available at http://docs.google.com/Doc?id=dfs3rpx8_11cmh5fp, on file with the author) [hereinafter
referred to as “INTERVIEW WITH GULSHAN RAI”].
95
Id.
28
In large part, this also continued with the next momentous change in the area of the legal
framework for Internet regulation and policy in India, this time in the realm of statutory
law, as described below.
- THE CRUCIALLY IMPORTANT ROLE OF THE INFORMATION TECHNOLOGY ACT
In December 1999, the Information Technology Bill was introduced before

Parliament by the then NDA Government, culminating a drafting process that had
apparently begun back in 1997.96 In this, the Bill from the outset appeared to be a rather
strange statute when one contrasts its provisions to its expressly stated purpose and origin,
a state of affairs which did not disturb Parliament apparently given its enactment into law
in the form of the Information Technology Act, 2000. Though originating from the
United Nations Commission on International Trade Law (UNCITRAL)’s adoption of its
Model Law of Electronic Commerce97, a fact acknowledged in the preamble of the final act
itself, this statute went beyond e-commerce related provisions to also touch upon creating
new substantive criminal offences and evidence amendments.98
Before going into the substantive provisions finally incorporated into the
Information Technology Act, it is important to first note the proposals that did not make it
into the final Act. During its examination by a Parliamentary Standing Committee, a
proposal was made that ISPs had to maintain records of users that the Police could access,
and that cyber-cafés should only provide access on being provided with designated proofs
of identification.99 Another insertion that was recommended was mandating that all
websites being hosted on a server or portal in India would have to register with the Central
96
Rajya Sabha Secretariat, 79th Report on the Information Technology Bill, 1999, para 9 (available at
http://rajyasabha.gov.in/book2/reports/science/79report.html, visited on 22-02-08) [hereinafter referred to
as “RAJYA SABHA REPORT ON IT BILL”].
97
A/RES/51/162, 30th January, 1997.
98
See RAJYA SABHA REPORT ON IT BILL, at paras 9-10.
99
RAJYA SABHA REPORT ON IT BILL, at para 16, 19.16.
29
Government, with the Government being granted the power to frame rules for the same.100
However, due to significant opposition mounted by representatives of the Internet services
Industry and other corporate groups tied in with the Government’s desire to fast track the
enactment of the Bill, these recommended additions were not carried forward into the
final statute.101
What were carried into force in the Information Technology Act (hereinafter
referred to as the IT Act) that pertain to the are of Internet regulation were with regards to
four different aspects, namely-
1. Penalizing the publication of obscene content (Section 67);

2. Providing for the power to mandate that a subscriber comply with any Government
agency seeking to intercept and decrypt any information which has been duly
ordered to do so (Section 69);
3. Powers of investigation and other procedural matters (Sections 77, 78, and 80);
4. Network service provider liability (Section 79).
In this, the first two are the most important given the direct manner in which they
pertain to Internet content regulation and monitoring. Section 67 of the IT Act penalizes
the publication/transmission of obscene content, much in the same way as Section 292 of
the Indian Penal Code (IPC) had been doing for regular physical matter prior to that. It
should be noted that the action that is punished here, in the same way as Section 292 of
the IPC, is that of publication and circulation; possession of such obscene material is not
in itself illegal. Also, the section itself merely imposes criminal liability with respect to such
publication/transmission of obscene material; it does not directly in itself mandate
procedures or powers beyond its normal criminal investigation and arrest powers under the
Code of Criminal Procedure, 1973 along with the IT Act.
100
Id, at 19.16.
101
See Rediff.com, Government keen to pass IT Bill, drops controversial amendment, 15-05-00 (available at
http://www.rediff.com/business/2000/may/15itbill.htm, visited on 22-02-08). See also Siddarth Varadarajan,
Policing the Net: The Dangers of India’s New IT Act 134-135, in SARAI READER 01: THE PUBLIC DOMAIN 133
(Monica Narula et al eds. 2001).
30
Section 69 is split into three parts, with the first part spelling out how directions can be
issued to State agencies to intercept communication in respect of a limited set of grounds,
with a very basic form of procedural safeguards.102 The interesting thing here is to note is
how the nodal authority for the issuance of such directions under the section is the
Controller of Certifying Authorities, whose main specified functions under the IT Act
actually all pertain to matters concerning digital signatures103, another example of the odd
mixture of e-commerce issues with law and order related imperatives. With respect to the
procedural safeguards of course, it would arguably seem unclear as to whether such
safeguards meet the standards laid down by the Supreme Court in the previously discussed
telephone tapping cases104 to protect the rights of citizens under Article 19(1)(a) and Article
21 of the Constitution, leave alone the seemingly higher standards in place in Europe105
and the United States106.
The important thing to note about these provisions of the IT Act is that no recorded
judgments currently exist where the Supreme Court or any High Court has examined how
they operate generally, let alone with respect to its constitutional law jurisprudence
concerning the limits of acceptable State regulation. Considering the rather dominant role
that the IT Act has had at least with respect to the discourse propounded by the State
concerning Internet regulation matters, as shall be seen in the next two sections, this
arguably raises doubts as to its legal worth in many respects along with undermining the
legitimacy of such regulatory discourse.
The impact of the IT Act is not merely limited to the provisions of its own sections, but
also goes towards providing the foundational underpinnings for additional regulatory
102
§69(1), INFORMATION TECHNOLOGY ACT, 2000 (“it is necessary or expedient so to do in the interest of
the sovereignty or integrity of India, the security of the State, friendly relations with foreign Stales or public
order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in
writing, by order direct…”)
103
Id, at §§ 17, 18.
104
See text accompanying supra notes 69-72.
105
See text accompanying supra notes 80, 81.
106
See text accompanying supra note 78.
31
actions by the State. This operates in two ways, the first of which being on one level as a
rudimentary anchor underpinning all discourse concerning Internet regulation by the
Indian State with regards to “cyber-crime” prevention and national security concerns. The
second, and potentially more important, form by which it acts in this regard is as a parent
statute, a foundational instrument of sorts, for a set of subordinate formal rules produced
by different State agencies concerning Internet content regulation as well as surveillance-
interception matters. In this, it acts as providing legislative sanction for the creation of
these regulatory norms and rules, in the manner in which subordinate legislation is
supposed to flow from a parent statute in legal systems such as India. The tracing out of
this relationship is crucial because of how this executive-produced subordinate legislation,
being of a regulatory nature, touches upon Article 19(1)(a) and Article 21 rights. As was
noted earlier in this paper107, restrictions on the freedom of speech and expression can only
be imposed through a statute passed by a legislature or an executive notification that flows
from a statute. There thus would seem logically necessary to see whether such executive
notifications and other subordinate legislation actually connect to their parent statutes in a
legally clear manner, as they would otherwise not fall within the class of constitutionally
acceptable restrictions imposed by the State.
- REGULATION BY EXECUTIVE NOTIFICATION – THE REGULATORY REGIME CENTERED ON

CERT-IN
The only truly formalized regulatory framework for Internet censorship and filtering in
India exists around a rather curious body, namely the Computer Emergency Response
Team- India, popularly referred to as CERT-In. CERT-In exists as a state agency, part of the
Department of Information Technology of the Government of India. Seemingly set up
based on the model of the United States Computer Emergency Readiness Team (US-
107
32
CERT)108, with other such teams in different countries across the world, CERT-In
essentially publicly envisages itself as a referral agency with regards computer security
incidents and proactive action to prevent the same from occurring.109 Interestingly though,
the exact authority and/or instrument by which CERT-In was set up doesn’t seem to be
available in the public domain; one could hesitatingly on the basis of conjecture conclude
from this that CERT-In exists merely as a internal division of the Department of
Information Technology set up by an ordinary administrative decision. The reason why
this conjectural point is important is it provides a ground for the proposition that CERT-
In does not fall within the category of a special government agency with an extraordinary
mandate (as other agencies, such as the Police and intelligence agencies for example, might
enjoy) that might justify it undertaking actions going against constitutional rights which
have not been explicitly authorized for as per Article 19(2) and general principles of
administrative law.
Given this, CERT-In definitely wouldn’t appear to be an agency with respect to which
one would expect the State to build a formal regulatory framework concerning Internet
censorship and filtering, yet this is exactly what has occurred. The instrument through
which this happened was through Gazette Notification no. GSR. 181(E), dated February
27, 2003 issued by the Department of Information Technology.110 Claiming the authority
108
Which itself was only set up in 2003, and is associated with the longstanding Computer Emergency
Response Team Program which operates from Carnegie Mellon University in the United States. See CERT,
Partnership Between the CERT Coordination Center and US-CERT (available at
http://www.cert.org/faq/uscert_certcc.html, visited on 22-02-08).
109
See CERT-In, About CERT-In (available at http://www.cert.org.in/mission.htm, visited on 22-02-
08)(Describing its charter as “to become the nation's most trusted referral agency of the Indian Community
for responding to computer security incidents as and when they occur ; the CERT-In will also assist members
of the Indian Community in implementing proactive measures to reduce the risks of computer security
incidents”. Its mission therefore in its own words is “To enhance the security of India's Communications and
Information Infrastructure through proactive action and effective collaboration”.)
110
The Gazette of India Extraordinary Part II -Section 3(i), Notification no. GSR. 181(E), Ministry of
Communications and Information Technology (Department of Information Technology) – Government of
India, February 27, 2003 [hereinafter referred to as “NOTIFICATION GSR181(E)”] (available at
http://web.archive.org/web/20040805203134/http://www.mit.gov.in/itact.asp, visited on 22-02-08.
Interestingly, this notification was originally directly available on the website of the Department of
Information Technology at http://www.mit.gov.in/itact.asp#3 but was later deleted from that website
seemingly at some point on or after 21-04-07 from what one can make out from the record of the Internet
Archive Wayback Machine available at http://web.archive.org/web/*/http://www.mit.gov.in/itact.asp#3).
33
for its existence from Sections 67 and 88 of the IT Act, the notification declared the
CERT-In would be the sole authority for the issuance of instructions for the blocking of
websites.111 It laid out that CERT-In could be approached with a blocking request only
from a select designated category of government officials112, and after satisfying itself on the
authenticity and merits of the request, would instruct the LR Cell of the Department of
Telecommunications to block the websites in question by ensuring compliance with the
same by ISPs.113 The essential objective of the notification appeared therefore to have been
to clearly designate CERT-In as the central nodal agency in sole charge of deciding on
blocking requests and, if satisfied , then ordering the Department of Telecommunications
to comply with the same.
The main issue with this notification lies in the authority it claims for its existence; i.e.
it is a piece of subordinate legislation made under Sections 67 and 88 of the IT Act by the
Central Government after consultation with the Cyber Regulations Advisory Committee.
In this regard, understanding the import of the sections in question is critically important.
Section 67, as mentioned previously, deals only with creating an offence for the
publication of obscene material being published/transmitted in electronic form. Section
88 is concerned with providing for the creation of a Cyber Regulations Advisory
Committee by the Central Government to advise the Controller or the Central
Government itself for specifically or generally framing regulations or rules under the Act
respectively. The interesting thing is that in itself this provision does not grant the power to
frame subordinate legislation of this form. That power is given to the Central Government
under Section 87 and to the Controller of Certifying Authorities under Section 89. Both
these sections list out a large number of matters for which the Central Government or the
111
Id, at clause 1.
112
Id, at clause 2 (a seemingly exhaustive list, but subject to the proviso that the other agencies/officers would
be authorized in this regard if the same was specified by the Government, presumably by means of a
notification).
113
See NOTIFICATION GSR181(E), at clause 1 (“Computer Emergency Response Team - India (CERT-IND)
shall be the single authority for issue of instructions in the context of blocking of websites. CERT-IND, after
verifying the authenticity of the complaint and after satisfying that action of blocking of website is absolutely
essential, shall instruct Department of Telecommunications (DOT) - (LR Cell) to block the website. DOT,
under whose control the Internet Service Providers (ISPs) are functioning will ensure the blocking of websites
and inform CERT-IND accordingly”).
34
Controller respectively can frame rules, though both sections claim that these are not to
prejudice their simultaneous grant of a general power to frame any rules under the Act. In
both sections however, no mention is made of website blocking or any rules that are to be
framed for Section 67 nor is the same arguably a direct logical consequence of Section 67.
This is on account of the fact that Section 67 merely criminalizes obscenity; to use
analogical reasoning the nearly identical Section 292 of the IPC doesn’t in itself provide a
power of seizure to the police with respect to obscene material as the same normally has to
take place in conjunction with the provisions of the Code of Criminal Procedure.
Given this, there is ground to argue that this gazette notification was an
unconstitutional restriction of freedom of speech and expression in relation to the
Internet given its failure under the jurisprudence of Article 19(2) to satisfy the test of
needing to flow from a law for this type of restriction; i.e. being a mere executive
notification not legitimately flowing from an Act of Parliament.114 Perhaps given this issue
of the legitimacy and constitutionality of the notification, the Central Government issued
Gazette Notification GSR 529 (E) dated 7 July 2003 wherein it stated that;
“Websites promoting hate content, slander or defamation of others, promoting

gambling, promoting racism, violence and terrorism and other such material, in
addition to promoting pornography, including child pornography, and violent sex can
easily be blocked since all such websites may not claim constitutional right of free
speech. Blocking of such websites may be equated to balanced flow of information
and not censorship”115 [emphasis added]
Several interesting things concerning the constitutional position of Internet

content can be noted from this. Firstly, the Central Government does seemingly clearly
114
115
See Ketan Tanna, Internet Censorship in India: Is it Necessary and Does it Work? (Sarai Independent Fellowship
2004 Report, available at http://www.ketan.net/INTERNET_CENSORSHIP_IN_INDIA.html, visited on
09-12-07) [hereinafter referred to as “KETAN TANNA FELLOWSHIP REPORT”. See also Shivam Vij, The Discrete
Charms of the Nanny State, NATIONAL HIGHWAY, October 6th, 2006 (available at
http://www.shivamvij.com/2006/10/the-discreet-charms-of-the-nanny-state.html, visited on 15-09-07).
35
concede that the constitutional right to free speech applies to websites generally, but just
not to the category of websites its mentions. Secondly, the list of subject matter that it lists
as not possessing constitutional protection is clearly wider that what it could claim to
regulate under Article 19(2) given its inclusion of content related to gambling and other
content possibly only tangentially related to material which can be proscribed by the State.
Thirdly, a rather odd claim is made that this does not equate to censorship and is instead
something termed as “balanced flow of information”. Possibly done as a desperate notation
to avoid an explicit tag of being a censorship provision, it prima facie constitutes a
restriction on Article 19(1)(a) in the nature of censorship, which could be held to be
unconstitutional unless shown that it is within the ambit of the reasonable restrictions
permissible under Article 19(2). Given the tenuous links to its parent statute and extent of
applicability mentioned above, it is unlikely that this is in fact the case here.
As will seen later in this paper when reviewing the record of active actions by the
Indian State to censor and filter access to selected content on the Internet, what these
notifications have essentially done is to formalize the process of blocking by laying out a
basic open-ended procedure by which such actions can be requested for by State agencies,
decided upon by CERT-In, and then executed by the Department of Telecommunications.
In short, it has institutionalized a pre-existing practice of event-specific censorship and
filtering by the State and in doing so has essentially sought to legitimize it, in large part by
means of trying to draw authority from the IT Act. At every step of the way these
notifications appear to have had no real legislative scrutiny or authorization, and have been
initiated and operated by the executive alone and that too primarily by the bureaucracy of
the Department of Information Technology in coordination with police and national
security agencies. Furthermore, by setting its ambit at a range of content that is possibly
more than what the State has traditionally claimed as being within its power to restrict, it
has raised additional concerns about its already shaky constitutional position.
36
- CYBERCAFÉ REGULATION – THE RATHER UNCLEAR SYSTEMS EXISTING IN DIFFERENT

STATES
In contrast to the manner in which Internet censorship has been had a regulatory
framework in existence centered on a single nodal agency, i.e. CERT-In, cybercafé
regulation has taken place in a greatly de-centralized, heterogeneous manner by different
state police forces. The importance of cybercafés to the exercise of freedom of speech and
expression by Indian citizens with relation to Internet content is of tremendous
significance owing to their tremendous popularity as a form of access here for the majority
of the populace. Cybercafés remain the most popular mode of access to the Internet here
in India116, though this arguably might be slowly changing with the increasing proliferation
of home and workplace Internet access along with the possibility of the installation of
municipal level wi-max networks.
For the greater part of the period until now though, cybercafés have been the most
popular methods of access to the Internet and have consequently occupied a crucial role in
how the Internet has come into contact with public space here in India. Their regulation
has in perhaps been also been a result of their increasing visibility and place in India’s
public space, with moves for their regulation flowing from the State’s anxiety as to two
main aspects of cybercafés as a space. Firstly, there is a continuation of the State’s concern
about national security and policing, with the incredible reach and large amounts of
possible anonymity available via cybercafés provoking special paranoia. Secondly, there is a
considerable attention as to the role of cybercafés as a space providing large sections of the
populace, especially the youth, with exposure to what various facets of the State consider
dangerous and warped content, such as seditious propaganda and pornographic content.117
116
See Internet and Mobile Association of India, Internet in India: 2006, at 16 (available at
http://www.iamai.in/research_index.php3), as quoted in ONI: INDIA PROFILE, at 2
117
See Namita Malhotra, Search History: Exploring Pornography on the Internet, at 4 (available at
http://www.genderit.org/upload/ad6d215b74e2a8613f0cf5416c9f3865/SearchHistory.pdf, on file with
author) [hereinafter referred to as “MALHOTRA: SEARCH HISTORY”].
37
Cybercafé regulation is a state-centric model with very little overall connection with any
central level policy or legal frameworks, with the exception of where legitimacy is drawn
from the IT Act. The exact form of regulation differs state to state consequently
accompanied by differences in regulatory frameworks as well, but there appears to be
attempts made at least on the part of the police in all states to regulate cybercafés. These
different regulatory frameworks do seem to share a common aim, in that they seek to
establish architectures of control via instructions and mandated policies contained in
notifications by executive agencies of state governments by which the executive can
monitor which individuals are using such facilities and their usage details (as to the
maintenance of logs indicating which user was using a particular IP address at a given
moment). What is crucial to note here is that this framework facilitating surveillance has
taken place without any legislative sanction till now; as noted earlier Parliament had
considered incorporating a provision of this sort when drafting the Information
Technology Bill, but the Government decided against mandating such record keeping and
monitoring by omitting this provision in the final bill that was passed.118
A caveat that must be noted concerning the observations and findings that follow is
with regards to the nature of sources used to come to these conclusions. A large amount of
the information available on these different cybercafé regulatory frameworks is derived
from direct queries from state officials, but is also largely drawn from media reports and
anecdotal evidence. This is due to the problem of the unavailability of the notifications
through which this regulatory framework as come about which itself is part of the larger
problems of executive notifications in India; namely how a great deal of regulation takes
place through documents which the public can rarely ever know whom to access from, let
alone read and critique.
Keeping that in mind, what we essentially have here is a situation where the Police have
found different sources of legitimatizing authority for such surveillance; this has varied
118
38
state by state. There appear to be roughly three main categories of regulatory frameworks
concerning cybercafés;
1. One category has been based on the issuance of notifications by executive organs
such as state government ministries mandating that cybercafé owners maintain
records and comply with government agencies requests to hand over the same
during any investigation. What is interesting is that such acts of delegated
legislation claim to draw authority from the Information Technology Act, 2000. In
Karnataka’s case, this has been via a notification made by the Information
Technology Secretariat of the Government of Karnataka.119 Claiming authority
under Section 90 of the IT Act (which deals with the power of state governments to
frame rules for matters coming under the Act), the notification essentially puts in
place a framework by which cybercafés are to take precautions against the usage of
their facilities for any illegal activity120, and also mandates a comprehensive system
of record keeping without which they are not supposed to allow individuals to
access the Internet121. This appears to also be the case in Kerala, and also possibly in
Tamil Nadu.122
2. Another category appears to be based on purely depending on the power conferred

by Section 144 of the Code of Criminal Procedure, 1973 to issue orders in urgent
cases of nuisance or apprehended danger. It is this model that is currently operative
119
No. ITD 07 PRM 2004 Bangalore, IT, BT, and Science and Technology Secretariat - Government of
Karnataka, 5th August, 2004 (available on file with author) [hereinafter referred to as “KARNATAKA
CYBERCAFÉ RULES NOTIFICATION”].
120
Id, at clause 3(1) (“the owner of the cybercafé will take sufficient precaution so that computers and
computer systems in the Cyber Café are not used for any illegal or criminal activity”)
121
Id, at clauses 3, 4 (the rules set out that access can only take place after the identification of the person is
confirmed on the basis of designated types of identification proof. After the same is done, the details of the
user with regards to name, age, sex, and address along with the log-in and log-out times are to be noted in a
log register whose format is also prescribed by the notification. While greatly reducing the anonymity of
Internet access via cybercafés, what the notification does not prescribe is active monitoring and data storage
of the Internet traffic of the user).
122
Interview with Detective Inspector Vinayak, Bangalore Police, Bangalore 18-12-07 (Notes of interview on
record with author) [hereinafter referred to as “INTERVIEW WITH INSPECTOR VINAYAK”].
39
in the National Capital Territory of Delhi123, and may also be operative in other
states which have not issued notifications under the IT Act or any specific state
statute. Its value as a source of legitimizing authority seems to be weak, which can
be observed most notably by the fact that the Delhi Police have called for the
enactment of a more comprehensive law covering such matters by the state
legislature, with the current position supposedly being that the police only verify
certain credentials of the cybercafé owner.124 The interesting to note is that this
section specifically deals with the power of police officials of a designated rank to
issue directions in emergency situations as if he/she were an Executive Magistrate.
While the Supreme Court in the Babulal case125 had allowed the restriction of
Article 19(1)(a) rights under an order made generally under this section which had
not stated an express ground, it would be doubtful that the same permissiveness
would extend to a notification mandating a continuous system of monitoring of
this form. This section is supposed to be meant for usage only in cases of grave
emergency126, and any order issued under it is temporary in nature as it cannot
continue longer than two months with only a single six month extension by the
state government possible127. Since orders which are not flowing from any
particular situation of grave emergency and/or which are equivalent to or even in
effect perpetual injunctions are anathema under this section128, a notification
123
Interview with Alok Verma, Joint Commissioner of Police – Crime: Delhi Police, New Delhi, 16-10-07
(Notes of interview on record with author). See also, The Hindu, Police Order on cyber café use, July 22nd,
2006 (available at http://www.hindu.com/2006/07/22/stories/2006072227630300.htm, visited on 15-10-
07, on file with author) [hereinafter referred to as “INTERVIEW WITH ALOK VERMA”].
124
Id. See also, Interview with S.D. Mishra, Additional Commissioner of Police – IPR & Cyber Cell:
(Economic Offences Wing): Delhi Police, New Delhi, 16-10-07 (essentially, The proposed new regulations
would go towards regulating access by children. It would also mandate the blocking of pornographic content
but only with respect to children; apparently access of the same by adults would not be regulated so long as it
does not become publicly viewable. With respect to the maintenance of logs, this would only be in the form
of systemized logs, IP addresses, and ISP info and would not go as far as the installation of key-logger
programmes) [hereinafter referred to as “INTERVIEW WITH S.D. MISHRA”].
125
Supra note 30.
126
See P.M. BAKSHI, SARKAR ON THE LAW OF CRIMINAL PROCEDURE 343, 345 (8th ed. 2005) (noting that such
directions can be given in only three specified cases, namely- “(1) obstruction, annoyance, or injury to any
person lawfully employed; (2) danger to human life, health or safety, or (3) disturbance to the public
tranquility or a riot, or any affray”).
127
§144(4), CODE OF CRIMINAL PROCEDURE, 1973.
128
See BAKSHI, supra note 126, at 345, 354.
40
putting in place a standing regulatory framework for cybercafés in this manner

would be ultra vires Section 144 itself, and consequently also an unconstitutional
restriction under Article 19(1)(a) of the Constitution.
3. The Mumbai model seems to be essentially a permit-system not drawing clear

authority from any central enactment (unlike the above two types) and by all
accounts appears to have been made under the Bombay Police Act. Here, the police
have mandated that all cybercafés have to take permission from the police and pay
a fee ranging from Rs. 2000 to Rs. 5000 (dependent on the number of personal
computer units being utilized) before starting operations.129 In the process of
securing this permission, the cybercafé owner has to show that he has put in place a
system by which Internet Protocol Allocation/Access Logs are maintained which
can be accessible by the police, along with only allowing access to those customers
who verify their identities via specified proofs of identification which would be
recorded. The rules also mandate what physical layout the cybercafés is supposed to
take, essentially directing a form of physical architecture by which the display of
most machines, especially those of minors, would be visible. As noted by Namita
Malhotra, the State seems to be duplicating its earlier initiatives to regulate theatres
and video parlors by here seeking to regulate the nature of the space where the
Internet is accessed.130 What is also noteworthy is how these rules by and large are
directly derived from the draft rules proposed by the Expert Committee of the
Bombay High Court in the previously mentioned PIL matter131, with an important
addition being the direction that filtering software would have to be installed to
block “pornographic websites” no matter whether the user in question was a minor
or an adult.132
129
INTERVIEW WITH INSPECTOR VINAYAK. See also KETAN TANNA FELLOWSHIP REPORT.
130
MALHOTRA: SEARCH HISTORY, at 4.
131
132
See KETAN TANNA FELLOWSHIP REPORT (reproducing the special rules in question, which state that “Cyber
Café owner shall take reasonable care to block the access of pornographic sites by the users of Cyber Café, by
installing such software’s”).
41
- PROPOSED LAWS THAT MIGHT BUILD UPON PRE-EXISTING REGULATORY FRAMEWORKS

CONCERNING THE INTERNET
As we have seen in the preceding portions of this paper, the regulatory frameworks in
place for Internet censorship, surveillance, and cybercafé regulation by and large all
represent executive-created and executive-centric frameworks. There is a clear lack of
legislative frameworks that actually support such executive notifications, and more
importantly shows the lack of a policy for such Internet regulation approved by the
legislature that respects constitutional principles. This however, might be the subject of
change in the form of two bills that are currently pending before Parliament, which are
discussed below;
+The Information Technology Act Amendment Bill
Formulated on the basis of the recommendations of an expert committee report

submitted on August 2005133, the Information Technology Act (Amendment) Bill, 2006134
proposes numerous changes and additions to the IT Act of which a few touch upon the
sphere of Internet regulation with the rest focusing on numerous other aspect of the IT
Act. It adds a definition for the term “cybercafé”135, and then goes on to create new
substantive offences under the IT Act including the sending of offensive messages through
a computer or mobile phone and publishing or transmitting material in electronic format
containing sexually explicit acts136, as well as new Indian Penal Code (IPC) offences
133
Department of Information Technology, Report of the Expert Committee: Proposed Amendments to the
Information Technology Act 2000 (August 2005, available at
http://www.prsindia.org/docs/bills/1168510210/bill93_2007112393_Expert_Committee_Amendments.pd
f, visited on 22-02-08) [hereinafter referred to as “EXPERT COMMITTEE REPORT ON IT ACT AMENDMENT”).
134
BILL NO. 96 of 2006 (available at
http://www.prsindia.org/docs/bills/1168510210/1168510210_The_Information_Technology__Amendme
nt__Bill__2006.pdf, visited on 22-02-08) [hereinafter referred to as “IT ACT AMENDMENT BILL”].
135
Id, at §4(c) (defining it to mean “any facility from where internet access is provided to the public in the
normal course of business”).
136
Id, at §31 (proposing the amendment of Section 66 of the existing IT Act, and the creation of tow new
sections, i.e. Sections 66A and 67). See also PRS Legislative Research, Legislative Brief: The Information
42
pertaining to invading a person’s privacy with respect to images of that persons private
area137. What is noteworthy here is the intent to move beyond penalizing the publication or
transmission of obscene content, to now also criminalize the transmission of any sexually
explicit act, a move that has a frighteningly dangerous implications for the exercise of free
speech rights vis-à-vis Internet communication.
The original Bill also amends the IT Act’s provision with respect to interception
and monitoring of communication, by vesting the power of interception with the Central
Government instead of with the Controller of Certifying Authorities as before.138 It also
broadens the grounds under which such interception can take place to also include the
ground of “for the investigation of any offence”.139 A small step towards respecting the
constitutional value attached to privacy vis-à-vis interception of communication has been
included in the form of mandating that the Central Government is to prescribe safeguards
in this regard, though it leaves it completely for Central Government to frame such
safeguards without any minimum conditions or procedures.140 The Bill also seeks to alter
the situation concerning the liability of intermediaries under the Act, by specifying the
conditions under which such immunity can be claimed, as contrasted to the general and
rather vague language in the original Act concerning actions being committed without his
knowledge or that he exercised due diligence.141 Furthermore, the Bill also grants CERT-In
legal recognition as a national nodal agency with respect to “Critical Information
Technology (Amendment) Bill, 2006, 2-3 (November 19, 2007, available at

http://www.prsindia.org/docs/bills/1168510210/bill93_2007112393_Legislative_Brief___Information_Tec
hnology_Bill.linkpdf.pdf, visited on 10-12-07, on file with author) [hereinafter referred to as “PRS
LEGISLATIVE BRIEF ON IT ACT AMENDMENT”].
137
Id, at §49 (Inserting a new Section 502A into the IPC under the heading of “Chapter XXIA: Of Privacy”
dealing with the case where someone intentionally or knowingly captures or transmits an image of the private
area of a person without that persons consent in circumstances violating the privacy of the person).
138
PRS LEGISLATIVE BRIEF ON IT ACT AMENDMENT, at 3.
139
IT ACT AMENDMENT BILL, at §33 (Amending Section 69(1) of the IT Act).
140
Id, at §33 (By means of amending Section 69(2) of the IT Act to read as the following: “The Central
Government shall prescribe safeguards subject to which such interception or monitoring or decryption may
be made or done, as the case may be”. One could hypothesize that the Central Government would have to
take the past guidelines laid down concerning telephone tapping in the PUCL case in mind though the same
by itself would not be appropriate for direct usage with respect to Internet monitoring and interception).
141
Id, at §38.
43
Infrastructure” and mandates compliance from any person from whom the Director of
CERT-In calls for information pertaining to “cyber-security”.142
This Bill was subject to review by the Standing Committee on Information Technology,
which in its report made several observations and called for numerous changes in the Bill
before it could be passed by Parliament.143 Most notably, the Standing Committee took
umbrage with the manner in which the Bill was providing immunity with respect
intermediary liability in certain cases, holding that in their view intermediaries/service
providers should not be absolved of responsibility at all “when their platform is abused for
transmission of allegedly obscene and objectionable contents”.144 Using a rather
problematic argument of how absolving online market places from liability for certain
forms of content would disturb the equilibrium with similar enterprises existing in the real
world, the Standing Committee not only called for a definite obligation be placed on
service providers vis-à-vis content transmitted via their platform, but also called for them to
make use of filtering software whenever possible to block or eliminate such objectionable
and obscene content.145 This suggestion if carried would definitely have a chilling effect of
freedom of speech and expression with respect to the Internet in India by not only
imposing liability but also mandating the installation of filters for a very broad class of
service providers.146
The Standing Committee was also dissatisfied with the provisions of the Bill granting
powers of interception only to the Central Government, as it was of the view that such
142
Id, at §35.
143
Lok Sabha Secretariat- Standing Committee on Information Technology (2007-2008), Fiftieth Report on the
Information Technology (Amendment) Bill, 2006 (available at
http://www.prsindia.org/docs/bills/1168510210/scr1198750551_Information_Technology.pdf, visited on
10-10-07, on file with author) [hereinafter referred to as “STANDING COMMITTEE REPORT ON IT ACT
AMENDMENT BILL”]
144
Id, at 54.
145
Id, at 54-55.
146
For a short glimpse into how individuals affiliated to Google perceive such actions, see Rishi Jaitly,
Intermediary Liability and the future of the Internet in India, GOOGLE PUBLIC POLICY BLOG, October 14th, 2007
(available at http://googlepublicpolicy.blogspot.com/2007/10/intermediary-liability-and-future-
of.html#c4690062075674641523, visited on 26-10-07, on file with author)
44
powers had to also be given to the state governments, and that an “emergency provision”
on the lines of Section 5(2) of the Indian Telegraph Act had to incorporated in the IT Act
so as to “combat proliferation of cyber crimes”.147Considering the problems that this
section of the Telegraph Act itself raised in the PUCL telephone tapping case concerning
its effect on the privacy of citizens148, its inclusion without serious reflection of how
procedural safeguards would have to be framed in the context of the Internet would be
quite problematic at the least. The Standing Committee also regrettably endorsed the
suggestion of the Central Bureau of Investigation (CBI) with respect to the Bill’s proposal
to introduce a new Section 72A punishing service provider and intermediaries for
disclosing the personal information of subscribers149 that an exception must be carved out
empowering law enforcement agencies to call for information in the nature of subscriber
and log data from service providers and others “in discharge of their official functions”.150
This is considerably difficult to accept given the massive invasion of privacy that such a
provision could enable, which wouldn’t even respect the flimsy procedural safeguards put
in place concerning monitoring and interception.
Another suggestion of the Standing Committee stands problematic in this way, i.e. its
objection to the omission of Section 80 of the IT Act which had allowed for officers of and
above the rank of DSP to enter any public place and arrest without warrant any person
found there on the basis of a reasonable suspicion of having committed an offence under
the Act.151 Considering that the move to omit this section via the Bill was a realization of
the earlier concerns about the tremendous scale of misuse possible of such a power152, the
147
STANDING COMMITTEE REPORT ON IT ACT AMENDMENT BILL, at 66-67.
148
149
IT ACT AMENDMENT BILL, at §36.
150
STANDING COMMITTEE REPORT ON IT ACT AMENDMENT BILL, at 67-68.
151
Id, at 69-71.
152
See Varadarajan, supra note 101, at 133-135 (It essentially seems that the Standing Committee, like its
predecessor which had reviewed the original Information Technology Bill were quite easily convinced of
arguments put forward by representatives of law enforcement agencies without even considering the dangers
that such provisions would have with respect to the rights of citizens and the everyday risk of harassment and
intrusion).
45
Standing Committee’s stance was again regrettably retrogressive and unmindful of civil
liberties in its nearly hostile suspicion of cybercafés as a public space.153
The Information Technology (Amendment) Bill, 2006 is still pending before the
Lok Sabha after the Standing Committee report, with there being no information as to
whether it will be further modified during debate or in fact whether it will be passed at all.
Till then, the recommendations of the Standing Committee remain merely that;
recommendations. Whether or not they get incorporated and if so in what form depends
on what the Government wishes to push through in the end, which the past history of the
original Information Technology Bill has shown as being not necessarily always in exact
accordance with such Standing Committee reports.154
+The Broadcasting Service Regulation Bill of 2007
The Broadcasting Services Regulation Bill, 2007 was proposed by the Ministry of
Information and Broadcasting of the Government of India, as what some have noted as
being a continuation of failed legislative attempts to regulate broadcast media beginning
after the Supreme Court’s verdict in favor of freedom of speech in the Cricket Association
case,155 which has been discussed previously in this paper.156 The Bill is currently only in its
preliminary draft form for review and comments157, and has not yet been tabled before
either of the two Houses of Parliament. In its current form, the Broadcasting Services
153
STANDING COMMITTEE REPORT ON IT ACT AMENDMENT BILL, at 67-68 (Noting that it would impair the
power of searching and raiding cybercafés, which the Committee said were “widely perceived as being
misused as havens for anti-social and anti-national elements”. This gives us an snapshot into the overall
approach that the Standing Committee had with respect to cybercafés and issues concerning their
regulation).
154
155
Tarunabh Khaitan, On the Broadcasting Services Regulation Bill, LAW AND OTHER THINGS, July 21st, 2007
(available at http://lawandotherthings.blogspot.com/2007/07/on-broadcasting-services-regulation.html,
visited on 15-08-07, on file with author) (noting that the Broadcast Bill of 1997 and Communication
Convergence Bill 2001 were moves in the same direction, which had lapsed due to the dissolution of the Lok
Sabha).
156
See text accompanying supra notes 39, 58, 59.
157
BROADCASTING SERVICES REGULATION BILL, 2007 (available at
http://mib.nic.in/informationb/POLICY/Bill200707.pdf, visited on 10-11-07, on file with author)
46
Regulation Bill, 2007 essentially aims at satisfying three goals with respect to broadcast
media, most important of which is the putting in place of a pre-censorship mechanism via
its Section 4 through a Content Code,158 a version of which has also been drafted and
made available159 alongside the Bill. Arguably flawed and excessively restrictive with respect
to traditional broadcast media itself in how it seeks to put in place a extensive regulatory
framework centered on government control,160 the Bill also raises the specter of Internet
content also falling within its regulatory ambit. Specifically, this is with regards the
definition of the term ‘broadcasting’ under the Bill. As noted by the Alternative Law
Forum in their detailed submission concerning the Bill, the definition of the term
‘broadcasting’ under Section 2(d) of the Bill is wide enough to include webcasts and other
Internet equivalents within its ambit161, a concern which seems to be the consensus view
amongst others as well.162 Interestingly, they also submit that the insertion of a proviso
clarifying that webcasts and all other Internet content do not fall under this definition
would not only be positive in terms of providing greater clarity, but would also be in
conformity with an agreement that was apparently entered into on July 2007 between the
Ministry of Information and Broadcasting and the Ministry of Communications
concerning their respective jurisdictions.163
As part of this move to possibly extend the regulatory frameworks applicable to the
Internet, it has also been reported that the Ministry of Information and Broadcasting have
158
Khaitan, supra note 154.
159
SELF REGULATION GUIDELINES FOR THE BROADCASTING SECTOR, DRAFT 2007 (available at
http://www.mib.nic.in/Code200707.pdf, visited on 10-11-07, on file with author).
160
See e.g. Ammu Joseph, Public missing in Broadcast Bill debate, INDIA TOGETHER, August 15th, 2007
(available at http://www.indiatogether.org/2007/aug/ajo-bcastbill.htm, visited on 31-12-07, on file with
author). C.f. Abhishek Singhvi, The show must go on, HINDUSTAN TIMES, December 13th, 2007 (available at
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=1849fd43-001a-4691-9960-
d6fdae7d03c4&MatchID1=4575&TeamID1=8&TeamID2=2&MatchType1=1&SeriesID1=1147&PrimaryI
D=4575&Headline=The+show+must+go+on, visited on 13-12-07)
161
Alternative Law Forum, Comments on Proposed Broadcasting Bill and Content Code 6 (August 4th, 2006,
available at
http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/Final%20Submission%20to%20MIB.doc,
visited on 20-10-07, on file with author) [hereinafter referred to as “ALF REPORT ON BROADCASTING BILL”]
162
See Rishi Jaitly, Celebrating India and the Internet, GOOGLE PUBLIC POLICY BLOG, August 14th, 2007
(available at http://googlepublicpolicy.blogspot.com/2007/08/celebrating-india-and-internet.html, visited on
19-09-07, on file with author).
163
Id.
47
been working on a set of rules as part of a draft amendment in the Press and Registration
of Books Act, 1867 to bring under its jurisdiction all news and current affairs content on
the Internet.164 Of course till now no clear Bill on this matter has been put forward before
Parliament for its assent, so the Internet at least for the moment remains free from any
regulatory framework controlled by the Ministry of Information and Broadcasting.
164
Shivam Vij, Not Just TV, Curbs Also for the Web, TEHELKA, October 27th, 2007, (available at
http://www.tehelka.com/story_main34.asp?filename=Ne271007notjustTV.asp, visited on 17-11-07, on file
with author).
48
CENSORSHIP AND SURVEILLANCE: THE MANNER IN WHICH THE INDIAN STATE HAS SOUGHT TO ACTIVELY
REGULATE SPEECH AND EXPRESSION ON THE INTERNET
“As a stable democracy with strong protections for press freedom, India’s experiments with
Internet filtering have been brought into the fold of public discourse. The selective censorship
of Web sites and blogs since 2003, made even more disjointed by the non-uniform responses
of Internet service providers (ISPs), has inspired a clamor of opposition. Clearly government
regulation and implementation of filtering are still evolving.”
-OpenNet Initiative165
These words of the OpenNet Initiative highlight an important caveat that we have
to keep in mind here first; Internet regulation by the Indian State in many ways is in a
highly evolutionary state. It changes month by month in several respects, in response to
pressures and priorities that a wide range of Indian government bodes and law
enforcement agencies deem as important to acknowledge or which are pushed upon them.
What appears to remain common is a regulatory approach primarily dependent upon:
1. The usage of executive directions to Internet Service Providers (ISPs) to enforce

filtering when desired, claming legitimacy from broad statutory provisions and
license policies;
2. Pervasive (though not necessarily effective) surveillance regimentation, based on
procedures and systems mandated by law enforcement. This is in turn greatly
premised on a discourse advocating the necessity of surveillance and monitoring
due to the concerns as to the inherent danger that the medium poses to
safeguarding national security and public morality concerns.
165
ONI: INDIA PROFILE, at 1.
49
The above of course represents a generalization of how State directed Internet

regulation has been taking place in India; needless to say that this requires the fleshing out
of details. There have been many active instances where the State has undertaken action
with respect to censorship and filtering, as well as with regards surveillance and
monitoring. Tracking the actual manner in which the Indian State has undertaken such
actions is difficult because of the lack of clear empirical data and assessment noting all
instances of Internet censorship and filtering here, not to mention the considerably de-
centralized and diverse situation concerning cybercafé surveillance and the opaque manner
in which Internet communication interception and monitoring has taken place. What
appears to be notable however, on the basis of the available sources, is that these actions
have taken place both within as well as outside the regulatory frameworks created by the
State which were examined in the previous section of this paper.
This is crucially important to examine given how such an approach towards

undertaking actions beyond even the existing and rather wide regulatory framework
utilized by Indian executive agencies represents a failure to observe basic procedural
safeguards in a manner which smacks of disregard for the constitutional restrictions
imposed on the state. We begin first with examining the manner in which this first took
place directly through a State instrumentality, namely VSNL, and how the first engagement
with State directed Internet censorship began.
- VSNL’S ROLE IN THE INDIAN STATE’S EARLY STEPS TOWARDS INTERNET REGULATION
PRIOR TO 1999-2000
As the first moves to deregulate the Internet services sector from the complete
dominance of VSNL started with the Government’s Internet Policy of 1998, this unique
position of the state-run VSNL with respect to the lack of effective legal restraints and full
practical control over Internet access resulted in the first major publicly uncovered cases of
50
Internet censorship. This was with regards a writ petition filed by Arun Mehta before the
Delhi High Court concerning the blocking of several websites by VSNL on the ground
access to the same contravened its service conditions as the websites were related to the
subject of Internet telephony.166 The argument put forward by the petitioner was that this
act of VSNL violated his freedom of speech and expression167, with VSNL countering that
it was mainly a contractual matter in relation to the service terms which it claimed were
supported by the Telegraph Act168.
The primary matter in the case would appear to essentially focus on the claim to
the power of regulation by the State to safeguards its commercial interest; as described by
one author it appeared to be “regulation… to protect state revenue”169. Soon though, a
national security related aspect was thrown in with VSNL’s action with respect to a
electronic mailing list by the name of the Middle East Socialist Network (MESN). Seema
Kazi, a subscriber to the list in New Delhi, found that her account was blocked from
accessing MESN and on inquiring about the same from VSNL was told that it had been
blocked on national security grounds because of “Muslims having links with Pakistan”.170
This was soon brought up in Arun Mehta’s petition before the Delhi High Court via an
affidavit171, though the block against her account accessing MESN was soon removed and
taken note of before the court.172
166
See Arun Mehta (Petitioner), Original Petition in Arun Mehta v. VSNL Writ Petition (Civil) No. 4732 of
1998, before High Court of Judicature at New Delhi, available at
http://docs.google.com/Doc?id=dc72g763_18jqxtt9 (visited on 22-02-08; on file with the author).
167
Id.
168
Rejoinder by VSNL, in Arun Mehta v. VSNL Writ Petition (Civil) No. 4732 of 1998, before High Court
of Judicature at New Delhi, available at http://docs.google.com/View?docid=dc72g763_19c57kcf (visited on 22-02-
08, on file with the author).
169
Farzad Damania, The Internet: Equalizer of Freedom of Speech? A Discussion on Freedom of Speech on the Internet
in United States and India, 12 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW 243, 259 (2002).
170
See Siddarth Varadarajan, Policing the Net: The Dangers of India’s New IT Act 134-135, in SARAI READER 01:
THE PUBLIC DOMAIN 135 (Monica Narula et al eds. 2001).
171
Arun Mehta (Petitioner), Rejoinder Affidavit in Arun Mehta v. VSNL Writ Petition (Civil) No. 4732 of
1998, before High Court of Judicature at New Delhi, available at
http://docs.google.com/View?docid=dc72g763_17ggtwxk (visited on 22-02-08, on file with author).
172
VSNL (Respondent), Further Affidavit, in Arun Mehta v. VSNL Writ Petition (Civil) No. 4732 of 1998,
before High Court of Judicature at New Delhi, available at
http://docs.google.com/View?docid=dc72g763_15d4hj95 (visited on 22-02-08, on file with author).
51
Soon the national security ground was used again to justify the imposition of
censorship by VSNL when it used its control over the gateway servers for India to block
access to the website of the Pakistani newspaper ‘Dawn’ during the Kargil conflict in
1999.173 Again, VSNL justified the blocking as being legal under the provisions of the
Telegraph Act174, just like what it had argued in the Arun Mehta case. The Dawn blocking
lasted only for a short duration during the Kargil conflict and wasn’t challenged before any
court. Of course, the Arun Mehta case was still would have perhaps provided a crucial early
precedent as to how free speech law under the Indian Constitution extended to the
Internet in India if it hadn’t been for the fact that it was soon overtaken by extensive
changes in the Internet services sector in India due to changes in policy by the
Government. 175
-THE DIVERSE WAYS BY WHICH THE INDIAN STATE HAS CARRIED OUT ACTIVE INTERNET
REGULATORY MEASURES IN CONTEMPORARY TIMES
Jonathan Zittrain and John Palfrey make an interesting comment about the manner
in which nation-states regulate content available online on the Internet. Building upon
Lawrence Lessig’s approach, they place emphasis on a system constructed around
interconnected forces of law, technologies, and social norms.176 Hence nation-states don’t
regulate online content through one monolithic censorship/filtering mechanism, but
rather through the means of various forces and instrumentalities in addition to direct
coercion and censorship.
173
See Chowk, Connected to: Harsh Kapoor, September 2, 1999 (available at
http://www.chowk.com/articles/4622, visited on 04-11-07, on file with author)(describing the initial
discovery of the block by Siddarth Vardarajan of the Time of India, and the subsequent actions of protest
and lobbying against the block).
174
See Damania, supra note 89, at 260.
175
The case itself is still pending before the Delhi High Court but would appear to have in large part become
moot failing any amendment of the writ petition’s claimed scope.
176
Jonathan L. Zittrain & John G. Palfrey, Jr., Access Denied: The Practice and Policy of Global Internet Filtering 6
(Oxford Internet Institute Research Report No. 14, June 2007) [hereinafter referred to as “ZITTRAIN &
PALFREY: ACCESS DENIED REPORT”].
52
This is particularly true in the case of India post the liberalization of the Internet
services sector in 1999-2000, with most of the actors in actual control over the physical
communication apparatus through which Internet access takes place here being private
enterprises. Consequently the Indian State has regulated speech and expression on the
Internet via a diverse range of tools and instrumentalities which can in fact be grouped into
the following main categories:
• Censorship and Filtering via executive directions

• Actions by law enforcement agencies vis-à-vis Cybercafés, Internet Monitoring, and
Content-based Prosecution.
+ Censorship and Filtering via executive directions
Since the issuance of the first gazette notification empowering it as a nodal agency with
respect to website blocking requests, CERT-In has been the primary agency having the
authority to issue directions calling for the Department of Telecommunications to instruct
ISPs to block websites. Numerous filtering directions have been speculated to have
originated from CERT-In177, with two instances in particular being of note due to the
considerable publicity on them and attendant scrutiny into CERT-In’s role. The first
instance was with regards the blocking of the Yahoogroup ‘Kynhun’, which was allegedly
linked to a secessionist North-Eastern group via a direction dated 10-08-03 by the
Department of Telecommunications to ISPs in compliance with a decision of CERT-In. 178
Due to the manner in which ISPs complied with this request, causing the parent website
and not just the specific sub-domain to be blocked, collateral blocking took place with
177
See Shivam Vij, Internet Censorship in India: An RTI Application, NATIONAL HIGHWAY, September 26th, 2006
(available at http://www.shivamvij.com/2006/09/internet-censorship-in-india-an-rti-application.html, visited
on 15-10-07) (a copy of a Right to Information petition addressed to the Department of Telecommunications
asking for information about several specific alleged cases of website blocking instructions issued by CERT-
In).
178
Department of Telecommunications (LR Cell), Direction to block Internet Website
“Groups.yahoo.com/groups/kynhun”, No. 820-1/2003-LR (Vol. I) (a scanned copy of the direction issued to the
Dishnet DSL ISP, on file with the author).
53
many users being unable to access any Yahoogroup sub-domain for a period of time until
ISPs rectified the situation.179 The second incident was after the Mumbai bombings of July,
2006 with CERT-In directing that access to seventeen blogs be blocked,180 resulting in
many blog service provider websites being totally unavailable for a period of time again due
to the inability of many ISPs to block specific sub-domains.181 In addition to this, CERT-In
has apparently also requested specific service providers such as Yahoo to remove content
concerning which complaints had been forwarded even though the website blocking
notification nowhere grants such a power, and on the basis of Yahoo’s compliance with the
request then supposedly instructed ISPs to stop blocking the concerned Yahoogroup sub-
domain.182
The fallout from the intensely negative public reactions to its reported cases of website
blocking have caused government officials in CERT-In to be far more cautious in how they
publicly discuss censorship and filtering matters183 and also lead to another consequence;
namely a change in how such website blocking is brought into effect. Media reports have
mentioned a proposal by the Department of Telecommunications to install filtering
mechanism at the level of the international gateways for Internet access located here in
India themselves.184 Possibly being done under the terms of the license policies under
which such gateway providers operate185, such an act would be a dangerous change in the
manner in which censorship has been taking place as it provide even less scope for
transparency as compared to the already largely opaque current system in what may be
179
See Opinion, Censorship of Internet, THE HINDU, October 21st, 2003 (available at
http://www.hinduonnet.com/2003/10/21/stories/2003102101231000.htm, visited on 22-02-08). See also
ONI: INDIA PROFILE, at 5.
180
Department of Telecommunications (LR Cell), Direction to block Internet Websites – regarding, No. 820-1/04-
LR(Vol-I) (a scanned copy of this direction is available at
http://photos1.blogger.com/blogger/507/157/1600/Indian_censored_list.jpg, visited on 22-02-08).
181
See ONI: INDIA PROFILE, at 5. See also Shivam Vij, Blog blockade will be lifted in 48 hours, REDIFF NEWS, July
19th, 2006 (available at http://www.rediff.com/news/2006/jul/19blogs.htm, visited on 10-03-07).
182
Vij, supra note 177.
183
See e.g. INTERVIEW WITH GULSHAN RAI (clearly stating that he did not wish to revisit the blog blocking
incident or anything connected with it in any form of detail).
184
Indrajit Basu, Security and Censorship: India to Clip the Wings of Internet, Government Technology, January
16th, 2007 (available at http://www.govtech.com/gt/articles/103332, visited on 19-10-07, on file with
author).
185
54
ordered to be done and its effects, greatly increasing the degree to which speech and
expression may be curtailed without proper procedure.
The police across different agencies and states have by and large channeled their
blocking requests through CERT-In186, with the exception of the Mumbai Police. This
divergence came to public fore in the matter concerning a direction issued by the Police
Commissioner of the Mumbai police to several ISPs to block the hinduunity.org website
on the grounds that it was spreading hate speech. Possibly done as an emergency
prohibitory order issued under Section 144 of the Code of Criminal Procedure, this was
complied with by most ISPs with the exception of Satyam Infoway which insisted that a
valid order could only come from CERT-In.187 Satyam’s resistance was apparently validated
by this order being finally approved of by CERT-In itself188, and the current position
appears to be that website blocking orders can only originate from CERT-In.189
+ Actions by law enforcement agencies vis-à-vis Cybercafés, Internet Monitoring, and

Content Based Prosecution
As noted previously190, the police play a pervasive role in the everyday operation of
cybercafés, though the exact method and manner by which this takes place seems to vary
from state to state. The Bangalore Police appear to currently be examining logs maintained
by cybercafé owners (which as has been noted earlier191, have been mandated on the basis
of the regulations notified by the state government) only a case by case basis when required
for a particular investigation or complaint192. This also is what the Delhi Police claim to
do.193 Notably though, the Mumbai Police seem to differ from this with several news
186
See INTERVIEW WITH INSPECTOR VINAYAK; INTERVIEW WITH S.D. MISHRA; and INTERVIEW WITH ALOK
VERMA.
187
See KETAN TANNA FELLOWSHIP REPORT.
188
Id.
189
This is a view that the Director of CERT-In also seems to share; see INTERVIEW WITH GULSHAN RAI.
190
191
192
INTERVIEW WITH INSPECTOR VINAYAK
193
INTERVIEW WITH ALOK VERMA.
55
reports and other anecdotal evidence indicating the desire of the Mumbai Police to
mandate the installation of embedded key-logger programs in all cybercafés in the city, with
data being forwarded to a central control room.194 If this were carried out, it would
represent an unparalleled step in intruding in the privacy of cybercafé users, perhaps more
appropriate for a State out of an Orwellian nightmare rather than one that should be all
accounts operating under the provisions of Articles 19(1)(a) and 21 of our Constitution. It
would also mark a break away from the more subdued and responsive model proposed by
the Expert Committee of the Bombay High Court in the earlier PIL concerning
cybercafés.195 It should also be noted that both the Bangalore and Delhi police forces claim
that they currently do not and have no future plans to mandate the installation of key-
loggers or other more intrusive forms of active surveillance at cybercafés.196
Systematic surveillance and interception of Internet communication and other traffic

data flowing through the networks of ISPs and gateway providers has been one area where
very little information is available, which is not very surprising when one considers the fact
that this would be an area involving the activities of intelligence agencies. These agencies
constitute a section of the Indian state which have largely been beyond any form of public
scrutiny, and in fact have been by-and-large cloaked in veils of secrecy so thick that there
actions and operating procedures have rarely been the subject of even cursory judicial
examination let alone detailed questioning as to whether they respect constitutional
limitations on acceptable state action. When once considers the aforementioned incredibly
wide extensive powers of interception and surveillance granted to them by the State with
respect to ISPs via their license policies197, this is even more disquieting. On inquiry
regarding this, the only thing that could be gleamed regarding this from the Delhi Police
was a terse assertion that such actions took place under the provisions of the Telegraph Act
194
See Vinod Kumar Menon, Virtual khabris to zoom-in on terrorists, MID DAY, August 29th, 2007 (available at
http://www.mid-day.com/news/city/2007/august/163165.htm, visited on 12-10-07, on file with author).
195
See BOMBAY HIGH COURT COMMITTEE REPORT, at 61-67.
196
INTERVIEW WITH INSPECTOR VINAYAK, and INTERVIEW WITH S.D. MISHRA.
197
56
on the authorization of the Union Cabinet198, a position that would also just happen to
cover the police from any claim of illegal interception by claiming legitimacy from the basic
guidelines put in place by the Supreme Court in the PUCL telephone tapping cases.
What is noteworthy is an increasing trend of direct cooperation between state police

units and service providers including major players such as Google. This has primarily been
in relation to Orkut, Google’s social networking service, which has been at the forefront of
considerable attention with regards to various categories of content available on it, which
has in fact even led to initiation of public interest litigation proceedings and website
blocking requests directed against it.199 This had even escalated to the level of the Pune
Police banning200 the site for a short duration while simultaneously launching raids against
cybercafés where the service was being accessed and instituting investigation proceedings
under the IT Act and the Indian Penal Code which were withdrawn.201 The end result of
this was that the Mumbai Police successfully managed to get Orkut to agree to cooperate
with them by means of a “Priority Reporting Tool”, allowing the Mumbai Police to make
direct complaints concerning content being hosted by the service which would then be
taken down without having to need to send blocking a request to CERT-In or any other
government agency.202 This agreement to cooperate with the Mumbai Police also
apparently extends to the provision of IP addresses or service provider details, with plans to
try and work out such relationships with services such as YouTube as well. 203 Not only does
this development provoke tremendous concern as to how deeply it harms freedom of
198
INTERVIEW WITH S.D. MISHRA.
199
See ONI: INDIA PROFILE, at 4-5 (noting the filing of a PIL on the matter of banning Orkut before the
Bombay High Court and an apparently unsuccessful request from the State Home Minister to CERT-In to
block the service).
200
Presumably, under an order issued under Section 144 of the Code of Criminal Procedure, 1973.
201
Id, at 5.
202
Times News Network, Orkut’s tell-all pact with cops, ECONOMIC TIMES, May 1st, 2007
(http://economictimes.indiatimes.com/Orkuts_tell-
all_pact_with_cops_/RssArticleShow/articleshow/1982584.cms, visited on 09-01-08, on file with author);
and Sagnik Chowdhury, Mumbai Police tie up with Orkut to nail offenders, THE INDIAN EXPRESS, March 12th,
2007 (available at http://www.indianexpress.com/story/25427.html, visited on 09-01-08, on file with author)
(noting that this had been entered into between the Enforcement Directorate of the Mumbai Police and
Orkut).
203
Id.
57
speech204 but it also begs us to ask whether a service provider such as Orkut capitulated
merely to escape the chance of harassment by police authorities, given the fact that one can
nowhere find such a reporting tool feature is being mandated by any law or Internet
regulatory framework applicable with respect to such service providers currently.
The chilling effects of this sort of intimate relationship between service providers and
other intermediaries with police units can be seen by looking at the fact that this is now
resulting not only in prosecution taking place on the basis of such freely shared
information, but is in fact even resulting in wrongful arrests made on the basis of the IP
address information that was handed over. This took place in a recent case where Google
capitulated to a request of the Mumbai Police who wanted to arrest an individual for
posting “disrespectful images” of a historic figure, who was quickly arrested from Bangalore
and only released when it was discovered that the IP address information provided by
Google had been incorrectly identified by Airtel, the ISP concerned, as that of the person
in question.205 Thus, service providers like Google are now actively cooperating with police
agencies in a formalized direct relationship which allows for practically no public scrutiny
or examination to determine whether it in fact respects the procedural safeguards
embodied in statutory law in accordance with the constitution.
204
The likelihood of such take-down requests being easily traceable by a lay citizen would be comparatively
low, thus reducing the chances of excessively oppressive requests being publicly exposed and protested
against, let alone judicially challenged.
205
Chris Soghoian, Google and the wrongly jailed Indian Net surfer, CNET NEWS, November 6th, 2007 (available
at http://www.cnet.com/8301-13739_1-9811569-46.html?part=rss&tag=feed&subj=SurveillanceState, visited
on 31-12-07, on record with the author) (what is interesting to note here is the disturbing willingness of the
police to arrest a suspect across state boundaries in a case merely pertaining to the posting of what some may
have held to be disturbing pictures of a historic figure, i.e. Chattrapatti Shivaji, merely on the basis of IP
address information and apparently without any case as to whether it had created a serious threat to the
peace or communal harmony. Additionally, it is also interesting to note that in their desire to absolve
themselves of any blame, the Mumbai Police were explicitly stating that the person who had been wrongly
arrested could have initiated action against Airtel, the ISP concerned).
58
THE CHALLENGES IN UPHOLDING DIGITAL CIVIL LIBERTIES IN INDIA: A CONCLUSION
As glanced at in the beginning of this paper, the death of the digital libertarian dream
of an Internet beyond State regulation essentially represents a challenge in readjusting
one’s perception and viewpoints about how we conceptualize the shape of the State’s
power with respect to the Internet. In other words, the rise of a bordered Internet
necessarily mandates that we carefully determine how our own domestic legal system and
state regulatory apparatus engages with the Internet, and then examine how it stands in
relation to those constitutional rights we deem most critical to our existence in a manner
befitting the concept of digital constitutionalism. In this regard, what India represents is a
jurisdiction where while the State has adapted its regulatory frameworks to bring the
Internet within its ambit, but done so in a manner where constitutional rights and
connected principles affording protection to freedom of speech and privacy have only been
taken into account at a bare minimum level, if at all.
Notably, digital constitutionalism with respect to India does have at least a basic
judicial base to build itself upon, given the manner in which Indian courts have been
willing to extend the constitutional protection afforded to the freedom of speech and
expression to new media as they develop. This, tied in conjunction with the manner in
which the Internet has been held to have been accorded free speech and privacy protection
in other comparative constitutional systems, means that Article 19(1)(a) and Article 21
would be highly likely to apply and protect Internet content from excessive State filtering as
well as illegal and unsanctioned monitoring and/or interception.
In essence, rather that taking into account concerns about digital civil liberties, the
Indian State has instead chosen to extend the ambit of the instruments through which it
used to addresses its traditional policing concerns to the Internet. As observed by Ravi
59
Sundaram in relation to the IT Act, the supposed cornerstone of the legislative framework
concerning the Internet, the State has relied on 19th century definitions of territoriality
based on the notion that “crime needs a physical location and this territory needs to be
policed”.206 This desire to police would perhaps still be acceptable if the State at least took
into account the constitutional restrictions imposed on it with respect to its actions in this
regard which may touch upon freedom of speech or privacy concerns. Instead, what the
State has done is to create a regulatory framework for Internet filtering, monitoring, and
interception which is endemically executive oriented in nature, with very little explicit
legislative authority. In doing so, it has violated a core precept of the limited exceptions
granted to it under Article 19(2) to impose reasonable restrictions on the exercise of
freedom of speech and expression, namely the need for such a restriction to originate
clearly from a statute passed by the legislature, either directly or by an executive
notification/direction made under the terms of such a statute.
The State’s filtering apparatus has been centered on CERT-In, mandated by gazette
notifications issued by the executive claiming dubious legitimacy from the IT Act, and
empowered mainly by the terms contained in ISP license agreements by which such ISPs
are bound to obey directions issued by the Department of Telecommunications. CERT-In’s
position as the primary nodal agency in charge of directing the blocking of websites is
currently undisputed, with all other state police units and government agencies sending
their website block requests to it for consideration. The State’s justification for establishing
this centralized regulatory framework for Internet filtering has never been very clear, with
there being a clear case to question its legal legitimacy as a restriction imposed on freedom
of speech which in fact does not flow from the IT Act as claimed, and also suffering from
the constitutional weaknesses of being vague, opaque, and lacking effective procedural
safeguards.
What the Indian State has shown consistently though is its desire to continue to refine
and adapt its filtering and monitoring techniques so as to allow it to exert more power with
206
See Varadarajan, supra note 101, at 134.
60
respect to tracking and shaping Internet content of all forms. Thus not only is there a
website blocking order system in place with CERT-In, but plans are now afoot to start
content filtering system at the gateway level itself. Regulation by state police units have also
seen considerable development, with there being three different regulatory models with
respect to cybercafé monitoring seemingly in place showing the different approaches on
this amongst the states. These differences in approach, while important in most regards, do
not take away from one shared effect; cybercafés in India are one of the most watched and
regulated spaces with the State being greatly successful in creating architectures of control
that shape how we characterize access to and engage with Internet content in this at least
nominally public space. The willingness of service providers to now enter into formalized
relationships of cooperation with the police also brings into mind the concern that
Internet users are now being tracked at every moment even by these private agencies in
order to satisfy the State’s desire to be able to call for such information at any moment. In
essence, it represents the triumph of Foucault-ism with respect to the Internet as a public
medium by the policing agencies of the Indian State.
The State has also in fact looked at extending the legal framework under which it
operates to further legitimize its filtering and interception activities. The Information
Technology Act (Amendment) Bill of 2006 represents just that, though it also modifies
other provisions of law in a manner that might benefit civil liberties. In contrast, the
Broadcasting Bill if carried in the shape it is now would bring a considerable portion of the
Internet under the ambit of a regulatory regime controlled by the Ministry of Information
and Broadcasting, essentially consolidating all electronic media new and old into one
monolithic category.
All of this has also been able to continue in large part due to the tension that the
Internet has produced in India in relation to how its content and position as a radically
open communication media give rise to fears concerning morality, crime, and national
security. The Internet represents a new controversial component of our everyday lives and
social space here; in effect becoming a new “boogey-man” as such to many. This
61
phenomenon in relation to public attitudes and state discourse towards Internet content is
in fact not new– as noted Gavin Sutter it in fact is the result of society’s traditional distrust
of new media and its desire to regulate mass media in particular, tied in with a societal
need for a scapegoat.207 These old fears about new media always bring concerns about
content such as pornography to the fore, fuelling drives to regulate such media especially
when it reaches out to a large mass of people.
The biggest systemic problem however, lies in how dissent has operated with respect to
the Indian State’s actions vis-à-vis Internet regulation. Large scale events such as the
directions by CERT-In in 2006 which caused the blocking of numerous blog provider sites
demonstrated how intense such dissent could be, but also showed that it primarily remains
unorganized and critically ineffective in mounting systematic opposition to oppressive state
actions. This failure to have organized professional organizations committed to monitoring
and challenging State actions which infringe upon civil liberties is a crucial weakness,
especially due to the apparent lack on interest amongst traditional Indian civil liberties
organizations in anything to do with the Internet or digital civil liberties in general.
The true lesson from the death of digital libertarianism and the rise of the bordered
Internet that we must keep in mind is that the State has and will continue to try and
expand the manner in which it can exercise power on the Internet, and that the Internet
cannot route around the same by itself. If we hold such digital civil liberties dear to us,
then they have to be aggressively and realistically fought for. The largely positive situation
concerning online free speech in several Western counties isn’t merely because of their
own particular legal systems, but instead flows from the concerted efforts of numerous free
speech activists and organizations. A landmark decision such as Reno v. ACLU decision was
in large part only possible due to the incredibly focused and well-organized efforts of
207
Gavin Sutter, “Nothing new under the Sun”: Old Fears and New Media, 2000(8) INTERNATIONAL JOURNAL OF
LAW AND TECHNOLOGY 338, in YEE FEN LIM, CYBERSPACE LAW: COMMENTARIES AND MATERIALS 344
(2002) (who quotes Shalitt’s proposed three laws of new media as support, which are: “1. Every new medium
of expression will be used for sex; 2. Every new medium of expression will come under attack, usually because
of Shallit’s First Law; 3. Protection afforded for democratic rights and freedoms in traditional media will
merely be understood to apply to new media… the fallacy of focusing on the medium and not the message”).
62
organizations such as the American Civil Liberties Union and the Electronic Frontier
Foundation, which have consistently been working in the role of watchdogs looking over
online free speech. They have been not only actively challenging State actions detrimental
to such values in court, but have also produced a wide body of knowledge and discourse in
the area crucial in shaping policy and public perception.
In examining how we engage with the challenges facing us on this front in India, it is
crucial that we engage with the manner in which Internet policy is decided in India. As
seen over this paper, there is a need to vigorously protect civil liberties especially by means
of regular monitoring of State actions across the entire range of its actions with the
Internet. Most importantly, there is special need to have focused institutions dealing with
this which do not limit themselves to only particular events of dissent. All of us, and
especially any such digital civil liberties organizations, have to engage in the level of shaping
the concerns addressed by the State at the discourse level itself, i.e. highlighting civil
liberties concerns at the point of policy formulation and drafting itself. An example of the
sheer failure to do this till now, can seen in the manner in which Standing Committee
Reports concerning the IT Act have failed to notice any civil liberties concerns, instead
choosing to only talk about concerns raised by the bureaucracy, security and intelligence
agencies, and industry.
If such engagements with trying to shape policy and legislative reform fail, then the role
of such institutionalized programs and organizations would lie in filing comprehensive
challenges before the courts in order to try and create a precedent of extending the judicial
protection of constitutional rights to Internet content and communication. In summation,
the Indian State has more or less had a free hand in regulating speech and expression on
the Internet, and unless something is done to bring to the fore concerns regarding civil
liberties the inertia of this regulation will be too great to stop.
63

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SARAI INDEPENDENT FELLOWSHIP PROGRAMME 2007 RAMAN JIT SINGH CHIMA

THE REGULATION OF THE

Project Blog: http://stateoftheweb.blogspot.com

THE DEATH OF THE DIGITAL LIBERTARIAN DREAM– AN INTRODUCTION

It’s been over a decade since digital libertarianism as encapsulated by Barlow’s

Digital libertarianism thus essentially based itself on several supposedly well-

MEDIUMS OF COMMUNICATION AND CONSTITUTIONAL LAW – THE SCALE AND EXTENT OF

- A SHORT PRIMER ON THE PROTECTION OF FREEDOM OF SPEECH UNDER THE INDIAN

In India, the protection of free speech and expression is enshrined in Article

- THE EFFECT OF THE NATURE OF A MEDIUM OF COMMUNICATION ON ITS TREATMENT

In India, questions concerning whether broadcasting was within the protection

Going back to broadcasting, it is important to note Raghavan’s observation that

Confirming that the statute in question was indeed unconstitutional, the US

“… site blocking without any objective guidelines would amount to a conferment of

The Committee specifically stated that it had referred to the decision in

- A FEW NOTES ABOUT PRIVACY LAW AND SURVEILLANCE

of Telecommunications apparently under Section 4(1) of the Telegraph Act.87 Then, in

- ISPS LICENSES AS REGULATORY INSTRUMENTS

These licenses have been modified and amended by the Department of

- THE CRUCIALLY IMPORTANT ROLE OF THE INFORMATION TECHNOLOGY ACT

In December 1999, the Information Technology Bill was introduced before

1. Penalizing the publication of obscene content (Section 67);

- REGULATION BY EXECUTIVE NOTIFICATION – THE REGULATORY REGIME CENTERED ON

“Websites promoting hate content, slander or defamation of others, promoting

Several interesting things concerning the constitutional position of Internet

- CYBERCAFÉ REGULATION – THE RATHER UNCLEAR SYSTEMS EXISTING IN DIFFERENT

2. Another category appears to be based on purely depending on the power conferred

putting in place a standing regulatory framework for cybercafés in this manner

3. The Mumbai model seems to be essentially a permit-system not drawing clear

- PROPOSED LAWS THAT MIGHT BUILD UPON PRE-EXISTING REGULATORY FRAMEWORKS

+The Information Technology Act Amendment Bill

Formulated on the basis of the recommendations of an expert committee report

Technology (Amendment) Bill, 2006, 2-3 (November 19, 2007, available at

+The Broadcasting Service Regulation Bill of 2007

1. The usage of executive directions to Internet Service Providers (ISPs) to enforce

The above of course represents a generalization of how State directed Internet

This is crucially important to examine given how such an approach towards

• Censorship and Filtering via executive directions

+ Censorship and Filtering via executive directions

+ Actions by law enforcement agencies vis-à-vis Cybercafés, Internet Monitoring, and

Systematic surveillance and interception of Internet communication and other traffic

What is noteworthy is an increasing trend of direct cooperation between state police

THE CHALLENGES IN UPHOLDING DIGITAL CIVIL LIBERTIES IN INDIA: A CONCLUSION

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