Union Government uses emergency powers to bury BBC documentary on the Prime Minister

The first part of a two-part documentary irked the Government enough to deploy its emergency powers under the IT Rules of 2021. The second part of the documentary releases today.

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TO thwart the circulation of a documentary on the alleged role of Prime Minister Narendra Modi in the 2002 Gujarat pogrom, the Union Ministry of Information & Broadcasting ('MIB') has directed Twitter and YouTube to remove links relating to the documentary, using its emergency powers under the controversial Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). The Union Ministry of External Affairs had previously called the documentary "a propaganda piece designed to push a particular discredited narrative".

The first part of the two-part documentary titled 'India: The Modi Question' was not officially aired by its producer, the British Broadcasting Corporation (BBC) in India, but remains to be circulated through backchannels despite the MIB's attempt to prevent its dissemination.

A Senior Advisor to the MIB confirmed on Saturday on Twitter that the blocking directions were given by the MIB using its emergency powers under the IT Rules. It was further disclosed that the MIB has concluded that the documentary undermines the sovereignty and integrity of India, has the potential to adversely impact India's friendly relations with foreign countries, and disturbs public order; which are some of the grounds listed in Section 69A of the Information Technology Act, 2000 (IT Act) for blocking online content expeditiously.

Officials at Twitter and YouTube have accordingly complied with the MIB's order, salvaging themselves from possible imprisonment extendable up to seven years and a potentially heavy fine, for violating an order of the Ministry made under section 69A.

Till the time of this report going to press, no official press release or copy of the blocking order has been publicly issued by the MIB or the Press Information Bureau.

An application under the Right to Information (RTI) Act filed by international human rights organisation Commonwealth Human Rights Initiative (CHRI) in December last year to obtain documents on previous blocking orders and their review proved to be unsuccessful, with the MIB denying the solicited information for being "confidential." Section 69A or any other provision of the IT Act does not consider such documents as confidential.

Defending the documentary's approach, the BBC has contended, "A wide range of voices, witnesses and experts were approached, and we have featured a range of opinions – this includes responses from people in the BJP. We offered the Indian government a right to reply to the matters raised in the series – it declined to respond."

Blocked for access

Shortly after it aired on BBC Two in the United Kingdom on January 17, a copy of the first part of the two-part documentary titled "India: The Modi Question" was uploaded on YouTube by a private account, the link for which was circulated widely, before it was taken down on January 19 afternoon through a copyright infringement claim. However, the link now says, "The video has been removed by the uploader."

"The documentary on YouTube was not uploaded by the BBC. As is standard practice, we follow the procedure to have illegal uploads of any BBC content removed", the broadcaster said in a reply to a query from The Hindu.

Among those who shared the link to the documentary were Trinamool Congress Members of Parliament Derek O'Brien and Mahua Moitra, and public interest lawyer Prashant Bhushan. A list of 50 tweets taken down by Twitter is available at the Lumen database, which Twitter voluntarily notifies upon receiving content takedown requests.

"Govt on war footing to ensure no one in India can watch a mere BBC show. Shame that the emperor & courtiers of the world's largest democracy are so insecure", posted Moitra on Twitter.

On Monday, a saved copy of a now-blocked YouTube link on Internet Archive, a United States-based repository of webpage archives, was taken down. Though it is unclear whether it was on a request by the MIB or by the BBC.

However, the documentary has found safe circulation routes on instant messaging service Telegram, and in file-sharing software such as Google Drive and Proton Drive.

From 2015 to 2022, the Union Government invoked its powers under section 69A to block websites, URLs, applications, social media posts and accounts a total of 22,447 times, according to a report by the non-profit organisation, Software Freedom Law Center titled 'Finding 404: A Report on Website Blocking in India'.

In the wake of the farmers' protest in 2020-21, the Twitter account of a prominent farmers' group called Tractor2Twitter was withheld; as was that of journalist Rana Ayyub, author of 'Gujarat Files: Anatomy of a Cover Up'. Similarly, social media posts critical of the handling of the COVID-19 pandemic by the government have also been ordered to be blocked, among only a few of the instances where emergency powers have been deployed, the Lumen database reveals.

Emergency blocking provisions

The MIB derives its emergency powers to order the blockage of online content from a collective reading of section 69A (potential grounds for blocking) of the IT Act with Rule 16 (procedure of blocking) of the IT Rules.

Under rule 16, in an emergency situation "for which no delay is acceptable", an Authorised Officer shall examine the relevant content to consider "whether it is necessary or expedient and justifiable to block such information" and make a recommendation in this regard to the Secretary, MIB.

No opportunity for hearing is required to be provided to any person, publisher or intermediary under rule 16, but the provision stipulates a mechanism to review the blocking order by an Inter-Departmental Committee comprising representatives from various ministries and domain experts, who must be informed within 48 hours from the issuance of the direction. However, the opinion of the Committee is only recommendatory in nature, and the Secretary, MIB is at liberty to overrule its decision.

A second level of review is to be conducted by a Review Committee constituted under the Telegraph Rules, 1951. While the committee has the power to set aside an MIB order, it has been mandated to meet only at least once every two months to review whether the blocking direction was in accordance with the provisions of section 69A(1) of the IT Act.

Section 69A lists the potential grounds under which the Ministry may exercise the powers specified in rule 16. These grounds are: sovereignty or integrity of the country, security of the State, friendly relations with foreign States, public order, and the prevention of incitement towards the commission of any cognisable offence relating to the above.

The MIB, in reply to an application filed under the RTI Act by CHRI on December 14 last year, refused to divulge documents relating to previous content blocking orders, the Inter-Departmental Committee's recommendations and the minutes of the Review Committee's meeting.

The CHRI, in its RTI application, had stated that the documents it seeks are in the nature of information that is required to be disclosed suo motu under Section 4(1) read with Section 4(2) of the RTI Act. However, the Ministry, in its reply dated January 10, had invoked Section 8(1) of the RTI Act (exemption from disclosure of information), claiming confidentiality.

As noted previously, section 69A or other provisions of the IT Act do not consider such documents as confidential or warranting an automatic exemption under the RTI Act. An order to block access to any content under Section 69A must necessarily be recorded in writing with reasons, as per the provision. Meanwhile, under the IT Rules 2021, the Authorised Officer has been mandated to maintain complete records of directions issued by them, and the proceedings of the Inter-Departmental Committee, including any complaints referred to it and recommendations made by it.

Despite the above provisions, the MIB and the Press Information Bureau are yet to publicise the Ministry's recent orders against YouTube and Twitter. The public availability of these documents hold significance in that they would reveal the reasoning applied and the material considered by the MIB and the Inter-Departmental Committee to thwart access to the documentary, in addition to revealing whether other intermediaries have received similar orders.

The second part of the documentary, due to air today, will cover re-election of the Bharatiya Janata Party in 2019, the abrogation of Jammu & Kashmir's special status and the protests against the Citizenship (Amendment) Act.