Plea Filed In Supreme Court Against Blocking Of YouTube News Channel '4 PM'; Validity Of IT Blocking Rules Also Challenged

Journalist Sanjay Sharma has moved the Supreme Court against the blocking of his YouTube news channel '4PM' on purported grounds of 'national security' and 'public order'. Among other things, he has sought urgent restoration of access to his platform and challenged the vires of IT Blocking Rules, 2009.

Terming the blocking action "arbitrary and unconstitutional", Sharma, the Editor-in-Chief of the 4PM YouTube channel, claims that the blocking by YouTube (an intermediary) was without any prior notice or hearing and pursuant to an "undisclosed" order of the Union government under IT Blocking Rules. As such, there was violation of his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

"No blocking order or underlying complaint has been furnished to the petitioner, violating both statutory and constitutional safeguards", the plea urges.

The specific reliefs sought by Sharma are as follows:

- Direction to the Union to produce the blocking order with reasons and records, if any, issued to YouTube for blocking the channel “4PM ”;

- Quashing of the blocking order passed by the Union after the same is produced with reasons and records;

- Quashing of Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and/or reading the word 'shall' to be a compulsory requirement; and reading down of Rule 8 of the 2009 Rules to ensure a conjunctive reading of the term “or” as “and”, and ensure that the notice for blocking is issued to the intermediary as well as the person (originator or creator of the content);

- Striking down and/or reading down of Rule 9 of the Blocking Rules, 2009, to mandate the issuance of a notice, opportunity of hearing, and communication of a copy of the interim order to the person (originator or creator of the content) prior to the passing of a final order.

Grounds raised

The grounds raised in support of the prayers include inter-alia:

- The 2009 Blocking Rules including Rules 8, 9, and 16 infringe upon fundamental rights guaranteed under the Constitution, particularly the rights to freedom of speech and expression, right to equality, and the right to life and personal liberty. The rules permit blocking of content without a meaningful opportunity for individuals to challenge such actions, thereby affecting their right to express themselves freely;

- Freedom of speech and expression guaranteed to each citizen under Article 19(1)(a) embraces within its scope the freedom to disseminate information, and interchange of ideas, as held in PUCL v. Union of India;

- Rule 16 mandates confidentiality regarding the reasons for content blocking; as such, it infringes upon the right to information, a component of the right to freedom of speech and expression as held by the Supreme Court in Shreya Singhal v. Union of India;

- Rule 16 absolutely withholds the free flow of information from the State to the citizens and casts an unjust interference on grounds of mere mentioning of 'security of state', in absence of publication of reasons [Ref: Manohar Lal Sharma v. Union of India];

- Rule 16 is subordinate legislation which does not have any nexus with the purposes for which the parent statute, the Information Technology Act, 2000, has been enacted and is ultra vires to that extent. It seeks to extinguish the scope of judicial review by imposing confidentiality on the entire process;

- Rule 16 is inconsistent with Section 69A of the IT Act, which requires that blocking orders must be in writing and contain reasons for the action;

- Rule 8 mandates notice to the intermediary but does not ensure that the person whose content is being blocked (i.e., the originator of the content) is directly informed. This violates the right to due process guaranteed under Articles 14, 19(1)(a), and 21 of the Constitution;

- Rule 9 does not provide a mandatory requirement of hearing the citizen aggrieved, prior or post to passing a final order blocking the content from the internet subsequent to an interim order passed. It allows indefinite blocking without specifying a clear process for resolution or redress. In emergency situations, where content is blocked without notice, the aggrieved party has no mechanism to challenge the blocking or even know when or how it will be lifted;

- The purported reasoning of national security cannot be invoked as a blanket excuse to shut out independent journalistic voices. Restrictions must be justified and proportionate;

- The principle of proportionality requires that only the offending post is dealt with in accordance with law after engaging with the publisher of the post and not the whole channel.

Editors Guild press statement on the blocking action

On May 1, the Editors Guild of India issued a press statement expressing concern about the Union government's directive to block '4PM' YouTube channel on grounds of national security and public order without disclosure of any specific reasons or evidence, or prior opportunity of hearing. "This opaque use of executive power...is in line with a troubling pattern the Guild has flagged earlier - of increasing curbs on free speech through non-transparent processes. Arbitrary takedown orders underline the fundamental right to freedom of speech", the statement said.

Citing prior takedowns/blocking actions, such as in the case of website of Vikatan (a  Tamil news and magazine platform which was blocked after it published a satirical cartoon) and digital news outlet-The Kashmir Wallah, the Guild called for a transparent and accountable mechanism for content takedown and stressed that "national security cannot become a pretext to silence critical voices or independent reporting".

The plea has been filed through Advocates Syed Mohammad Haider Rizvi, Talha Abdul Rahman and M Shaz Khan.