In Freedom House’s Freedom in the World 2021 report, India’s status dropped from ‘free’ to ‘partly free’. The democracy watchdog, which is primarily funded by the US government, stated that “political rights and civil liberties in the country have deteriorated since Narendra Modi became prime minister in 2014, with increased pressure on human rights organizations, rising intimidation of academics and journalists, and a spate of bigoted attacks, including lynchings, aimed at Muslims”. This decline has only accelerated since his re-election in 2019. During this time, authorities have increased regulation of and access to online spaces as a means to control political discourse and stifle dissenting voices.
According to Access Now, India accounted for 70% of the world’s internet shutdowns in 2020. This included the world’s longest internet shutdown in Kashmir, which lasted 213 days following the abrogation of Article 370 in August 2019. The government has cited “security measures” as justification for the shutdown, as it considers social media and other online platforms the primary facilitators of militancy in the region and the rise of “anti-national elements”. Even as restrictions were lifted, only 2G internet services were resumed for those with verified SIMs – a process that includes police verification and telecom companies KYC (Know Your Customer) verification. With the outbreak of the COVID-19 pandemic, the internet shutdown has limited access both to information about COVID-19 and to essential services, drawing international criticism from human rights groups.
The government has also suspended internet and mobile services in response to protests in a given area as a means to prevent organization, in addition to imposing legal restrictions on assemblies and public gatherings across several states during protests opposing the Citizenship Amendment Act (CAA) in December 2019. The CAA allows for persecuted religious minorities in neighbouring countries to seek citizenship in India, with the exception of Muslims – a feature of the Act that is in direct contradiction with the secular foundations of India’s constitution.
The restrictions on public gatherings were imposed by invoking Section 144 of the Code of Criminal Procedure, banning the assembly of more than four individuals. Section 144 has deep colonial roots. It was introduced and used by the British to oppress nationalist protests during India’s struggle for freedom. Given its history, it is a brazen restriction of the fundamental right to expression. In addition to this, internet and mobile services were shut down during the anti-CAA protests in multiple cities across the country. This included the capital of New Delhi, which saw its first internet suspension. More recently, the same tactic has been employed during the farmer’s protest, which is also concentrated around the national capital.
The recent introduction of two key national policies around internet and online platforms, with similar implications upon monitoring and controlling political discourse, have also drawn severe criticism.
The first is the Ministry of Home Affairs ‘‘Cyber Crime Volunteers Concept’’, which serves as a lateral surveillance program for any individual to flag and report “unlawful content”. The online volunteer programme is intended to serve as a facilitative tool for ordinary citizens to play a role in the prevention of cyber-crime. Any citizen can register themselves under one of three categories: ‘Cyber Volunteer Unlawful Content Flagger’, ‘Cyber Awareness Promoter’, and ‘Cyber Expert’. Overall, the initiative is quite vague, leading to the potential for misuse. It has been launched without a legal framework and allows volunteers to register without prior identity verification. The Ministry has also failed to define the term “unlawful content”, leaving a gaping grey area in terms of interpretation. Its vagueness leaves the possibility for content that is critical of the ruling government to be flagged and for the author’s identity to be reported.
Secondly, and perhaps more significantly, are the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, more commonly known as the IT Rules. These apply to internet and social media intermediaries, digital news platforms and OTT streaming services. An intermediary is a service provider which hosts and publishes user content without exercising editorial control over the content as traditional publishers would. Given the role they play in connecting individuals and published ideas, they are crucial for freedom of speech, shaping the online experience and privacy of the users.
Under Modi, the BJP government has also sought to alter intermediary liability (otherwise known as “safe harbour”) protections, which have been fundamental to growth and innovation, by escalating due diligence obligations. Under the IT Rules 2021, state enforcement agencies can demand intermediaries to establish the ‘first originator of a piece of content, as a move to heighten online traceability, as well as harsh content take down timelines. The aspect of traceability in this context jeopardizes the process of end-to-end encryption. A blog by Mozilla highlights the implications such timelines could have. Since small and medium intermediaries may not have the capability to react to strict timelines, the rules may force them into taking down content and sharing user data without sufficient due process safeguards in order to maintain “safe harbour”, placing right to privacy and expression at risk. Another major criticism of the regulation is the lack of participatory consultation with relevant stakeholders prior to the drafting or finalization of the rules.
In addition to social media, the IT Rules 2021 also seeks to extend the purview of the regulation to digital media with government registration and content take down provisions for online news websites. In recent years, authorities have employed various methods to stifle dissenting voices within the press, on online platforms, and within public spaces. The Freedom House report emphasizes the use of security, defamation, sedition, hate speech laws and intimidation to silence criticism expressed in the media. Between 2016 and 2020, there has also been an increase in the usage of the term ‘anti-national’ – a label used by the government and its supporters to brand dissenting voices or content. The term often dominates political discourse and has led to an increase in self-censorship.
Finally, the new IT Rules also seek to regulate content on OTT (over-the-top) streaming platforms, such as Netflix and Amazon Prime Video. This comes following outcry from the Hindu right wing over multiple series on such sites that have been perceived to hurt religious sentiments. In addition to the breach of the right to expression, such regulations could have an impact on the Indian entertainment and production industry and hinder the country’s growing cultural influence through content and production.
Freedom House has expressed concern over the implications this has on democracy internationally, given that India is the world’s largest democracy. With the decline in the country’s status to “partly free”, less than 20% of the world’s population lives in a “free country”, the lowest percentage in the last 25 years. India’s shift to stringent regulation on all fronts and the current government’s authoritarian tendencies not only undermine democracy at a domestic level, but raise alarms for the standard of democracy globally.
Edited by Elina Qureshi