A Lack of Sense, and Censor-ability in India

Prateek Waghre is a fellow at Tech Policy Press.

Through the course of February, the fate of free and creative expression on the internet in India has been on the receiving end of a ‘butterfly effect.’ The controversy started with a risqué, arguably tasteless, ‘would you rather’ question on an episode of “India’s Got Talent,” a YouTube-hosted parody-roast-talent show, featuring content creator ‘BeerBiceps’ (Ranveer Allahbadia) as a guest judge. This set off a chain reaction of escalating, often perplexing, responses from various sections of society and all three branches of the Indian government. These responses almost seemed competitive in their intent to signal action, and their disproportionate nature.

One could also question the amount of attention and resources allocated by otherwise resource-constrained government departments and agencies. A combination of organic and inorganic outrage and mobilization has amplified the belief that voices on the internet are unchecked and need to be controlled.

The nature of this response, wittingly and unwittingly, has primed the space for the Union government of India to step in and exercise greater control over speech and expression on the internet. These actions, which we will explore in this piece, focused on individual actors and broader questions on free expression, framed through a fuzzy lens of ‘morality’ and ‘vulgarity.’

Response from the Indian state

The ‘paywalled’ episode was released on Samay Raina’s YouTube channel over the weekend of February 8th. It started to attract attention when short clips from the episode, including Ranveer Allahbadia's ‘would you rather’ question, found their way to social media. This had happened with controversial segments in past episodes as well, but the furor often subsided in a few days.

On this particular occasion, though, the reaction was different. At the time of writing, the National Human Rights Commission (NHRC), the National Commission for Women (NCW), and law enforcement departments in multiple states, Members of Parliament (MPs), the Parliamentary Standing Committee on Communications and Information Technology, the Ministry of Information and Broadcasting (MIB), and the Supreme Court of India have each said or done something in relation to this episode. It is instructive to look at the disproportionate nature of actions – and in some cases – the speed of the response. These are listed in the appendix.

It is worth noting that during the course of these events, YouTube complied with a legal request to restrict the episode in India. By February 12th, Samay Raina announced on Twitter/X that he had ‘removed’ all episodes while stating that “(e)verything that is happening has been too much for me to handle.”

The responses of many of these bodies raise even more questions. The NHRC, which was quickly out of the gate on this, has so far been silent about a report documenting increasing instances of hate speech in India. The four states which swung into action are all administered by the BJP. Allahbadia was awarded ‘Disruptor of the Year’ at India’s first (and one would hope last) ‘National Creators Awards’ in 2024. He has hosted multiple union ministers and right-leaning commentators on his podcast.

What is even more concerning is that the responses from institutions that should have taken positions to protect rights and free expression fell short. Though MPs from across the political aisle commented on it, most took a ‘moralizing’ tone and batted for restrictions on the grounds of protecting ‘Indian culture.’ The Supreme Court, which was hearing a specific plea for ‘clubbing’ FIRs and protection from arrest, unnecessarily waded into questions of ‘morality’, ‘vulgarity’, and the need for consequences for speech instead of limiting itself to the plea. Unfortunately, these regressive positions were reflected beyond oral remarks in the nature of the directions issued by the bench.

This piece will not cover how sections of the press responded, a topic worthy of its own study. Newslaundry, an independent media publication that offers satirical critiques of TV News media, does illustrate this.

The state of the internet

The Standing Committee’s position, the Supreme Court’s remarks, and the combination of organic and inorganic outrage effectively invite the Union government to step in and propose legal instruments that will allow it to exercise even greater control over the speech and expression on the internet in India. These efforts could be in the form of new laws, and/or rules, or amendments to existing ones. Recent history suggests that the Ministry of Information and Broadcasting already has a draft bill, albeit with a complicated legacy, that may be ‘fit-for-purpose’ — the Broadcasting Services (Regulation) Bill or the Broadcasting Bill.

But before looking at the Broadcasting Bill, one needs to understand the different ways in which speech and expression on the internet are controlled today. India’s criminal codes are frequently used to prosecute people for things they say and do on the internet - just as this case demonstrates. It is also worth noting that the current set of criminal codes (Bharatiya Nyaya Sanhita, or BNS) was enacted as part of a process in which India overhauled its criminal justice laws (the Indian Penal Code, 1860, the Code of Criminal Procedure, 1872, and the Indian Evidence Act, 1872) in the span of a few months. It was ultimately passed by both houses of Parliament during a session in which around 150 MPs belonging to opposition parties were suspended.

The Information Technology Act, 2000 (IT Act) governs e-commerce transactions and cybercrime. It covers a range of offenses including, but not limited to: tampering with stored documents, transmission of ‘obscene’ material, ‘sexually explicit acts’ and CSAM, identity theft, impersonation, and so on. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules or IT Rules 2021 (amended in 2022 and 2023) are subordinate rules under the IT Act that apply to services/platforms on the internet, including social media, streaming services, and digital news publishers. These rules are co-administered by the Ministry of Electronics and Information Technology (MeitY) (for intermediaries) and MIB (for publishers, and streaming services).

Reportage by the Washington Post and Article 14 show that these rules and a combination of formal and informal pressure have enabled these ministries to exert greater control over social media platforms, streaming services, and content producers. As per the IT Secretary, in a recent interview, “compliance is … going up tremendously.” For intermediaries, these rules have meant an expansion of due-diligence requirements combined with threats to their ‘safe harbor’ status and landing/hostage-taking clauses. Some parts of the IT Rules pertaining to digital news publishers (administered by MIB) and the establishment of a fact-checking unit (administered by MeitY) have been stayed by high courts citing concerns about press freedom.

Content blocking is another lever that is used. As I write this, the website of a magazine has been blocked for nearly three weeks after they published a cartoon depicting the Indian Prime Minister in chains while meeting US President Donald Trump, alluding to the Indian state’s absence of a response to the conditions in which recent deportations were carried out. As is common, no prior notice was provided to the website’s administrators. After the website was blocked, magazine Vikatan was asked to appear before MIB, which subsequently issued a final order. On March 6th, the Madras High Court ordered MIB to unblock Vikatan’s website once it temporarily removes the cartoon until the court determines whether it violates the law. This is developing, but for now, the website remains inaccessible.

The current blocking regime relies on Section 69A of the IT Act, which lists six broad conditions under which directions to block information can be issued. The procedures for these are defined by Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 or Blocking Rules. The Blocking Rules allow the executive branch to invoke confidentiality, resulting in the person/group whose content may be restricted (whether on the website or social media posts) not knowing the reasons. In 2022, pre-acquisition Twitter had challenged a number of blocking orders on procedural grounds as well as the contention that it could not block entire accounts, which amounted to a restriction of future speech. Twitter lost the challenge and had a cost of INR 50 lakh imposed, which it has appealed. Multiple instances represent the opaque blocking regime, which operates with limited regard for due process, is used selectively, and has minimal avenues for recourse. Apart from Section 69A, Section 79(3)(b) of the IT Act also creates a ‘grey area’ which allows various government departments to direct internet services to remove/restrict content. The scope of this provision is being expanded by notifying more departments, including the Delhi Police. It was recently used by the Ministry of Railways to direct X to remove images and videos documenting a stampede that occurred at the New Delhi Railway Station on February 15th.

To put it bluntly, the current regulatory framework affords the executive branch too much discretion without sufficient safeguards.

A bill that wasn’t, now born again?

In this environment, what we know of the Broadcasting Bill from its draft versions can potentially make this worse. As per its explanatory note, the stated purpose of the Broadcasting Bill is 'to streamline the regulatory framework and provide a cohesive legal framework for the diverse broadcasting services’ and bring broadcasters, cable and satellite, radio, internet and terrestrial broadcasting networks under a single bill. A draft version was released for public consultation in December 2023.

A few months after this consultation concluded, and shortly after the general elections, the Hindustan Times reported that an updated version was circulated among specific stakeholders. In a rather secretive process, only watermarked physical copies were given out along with an ‘undertaking’ that the draft version would not be shared any further. The 2023 version was already problematic. The Internet Freedom Foundation (disclosure: I was its Executive Director at the time) had submitted in its feedback that the definitions in the bill were broad and vague enough to apply to any individual or entity on the internet and bring them under its framework of obligations and penalties. Among other changes, the 2024 secretive version made this risk even more plausible by tweaking definitions and expanding them in a way that all news/current affairs commentary could come under the bill, subject to how thresholds were defined. As a result of vigorous and consistent pushback from content creators and civil society, the union government withdrew the bill through a post on X. It did so without publicly acknowledging the existence of the 2024 version but instead stating that the consultation period for the 2023 draft had been extended.

The drafts included onerous obligations on content creators in the form of having content evaluation committees, having to adhere to as yet undefined program and advertising codes, and monetary penalties for non-compliance varying from tens of thousands of rupees to crores per offense, depending on the type of non-compliance and quantum of investment. One could conclude that content creators on the internet would skew towards the lower end of these penalties, but even that could be detrimental as few content creators are able to consistently monetize.

The draft versions of the Broadcasting Bill also gave the union government powers to issue directions to prevent ‘transmission’ for not adhering to these codes, or in the “interest of sovereignty or integrity of India, security of India, friendly relations of India with any foreign State, public order, decency or morality”.

The continuing theme of excessive executive discretion is unmissable in such provisions. With the “India’s Got Latent” controversy, content creators are already self-censoring and ‘lawyering up’. A ‘stick-wielding’ approach with threats of compliance and penalties, the possibility of exemplary punishment (as in this case), and selective action coupled with ‘carrots’ in the form of awards, and monetary payouts through ‘digital media policies’ risks creating a rather sterile environment.

A healthy democracy can certainly have space for disagreement over what kinds of content can be produced or to what extent people can push boundaries/norms, inviting an executive branch that has a propensity to overreach to be the arbiter of ‘morality’ would be an ill-advised path to take. A ‘sword of Damocles ’-like regulatory framework will only strengthen the state’s ability to censor independent voices that are pushing back against its excesses and malign social forces.

Appendix: Overview of Responses from State Agencies in India

• National Human Rights Commission (Executive)
  • On February 10th, wrote to YouTube’s Public Policy Head in India, stating that the show contained “‘highly objectionable, inappropriate, and obscene remarks against Indian society’. (Link).
  • ‘Directed’ YouTube to take the video down in the same letter.
• Nation Commission for Women (Executive)
  • On February 11th, issued a notice which summoned seven individuals (five judges and two producers) for a hearing on February 17th. (Link).
  • The hearing was rescheduled to March 6th.
• Law Enforcement Agencies (Executive, provincial/state level)
  • Assam
    • On February 10th, Chief Minister of Assam, announced on Twitter that the state’s law enforcement agencies had filed a First Information Report (FIR) naming the five individuals who appeared as judges, and ‘others’.
    • By February 18th, officers from Assam had traveled to Mumbai and Pune (in Maharashtra) to Allahbadia’s and Raina’s places of residence.
  • Maharashtra
    • On February 10th, the Chief Minister of Maharashtra commented on the controversy in response to a question by the press.
    • On February 11th, the Maharashtra cyber cell filed an FIR naming 30 people, including individuals who had appeared in other episodes.
  • Rajasthan
    • By February 18th, Jaipur police had filed a case against Allahbadia
  • Madhya Pradesh
    • On February 11th, Indore police registered a complaint against Allahbadia. It is unclear if a case has been filed subsequently or not.
• Members of Parliament (Legislative)
  • Some called for discussions at the Parliamentary Standing Committee for Communications and Information Technology.
  • Some spoke more directly about their desire to regulate/control/punish content creators and speech on the internet.
  • The issue was raised on the floor of the house during ‘Zero Hour’ with an ask to ‘regulate social media content’, and content creators were accused of taking undue advantage of free speech.
• Parliamentary Standing Committee for Communications and Information Technology (Legislative)
  • According to reports, the committee had written to MIB on February 13th asking for a note on what amendments may be required by February 17th.
  • The committee has also written to the Ministry of Electronics and Information Technology (MeitY) inquiring about the efficacy of existing laws.
• Supreme Court of India (Judiciary)
  • Allahbadia moved the Supreme Court, asking for the various FIRs against him in different parts of the country to be ‘clubbed’ and for him to be protected from arrest.
  • At the hearing on February 18th, the bench described his comments as ‘disgusting’, ‘filthy’ and ‘insulting’ and was dismissive of threats of violence against him.
  • Allahbadia was asked to surrender his passport and not upload any more videos on YouTube or ‘any other audio/video visual mode of communication’, effectively restraining his future speech.
  • The bench asked the Attorney General to address the ‘vacuum’ that was ‘being misused by so-called YouTube channels and YouTubers’.
  • It reiterated this in a subsequent hearing on March 3rd when Allahbadia sought to modify some of the conditions imposed on him.
  • While it did relax some of the conditions imposed on Allahbadia, the bench made some concerning observations about ‘handling’ those who write about free speech, and that rights were not ‘on a platter’ but flowed from duties.
• Ministry of Information and Broadcasting (Executive)
  • On February 12th, reports suggested that the legal requests to YouTube to restrict the episode were issued by MIB.
  • In its response to the Standing Committee, MIB is reported to have said that there is ‘rising concern’ that freedom of expression is being misused to show ‘obscene and violent content on digital platforms.'
  • On February 20th, it issued a notice to content publishers ‘reminding’ them of their obligations under the IT Rules and to adhere to a ‘Code of Ethics.'