Status: Partly Free
Obstacles to Access: 11 (0–25)
Limits on Content: 8 (0–35)
Violations of User Rights: 15 (0–40)
Total Score: 34 (0–100)
New media took hold in India during the mid-1990s, with mobile-phone services and commercial internet connections first made publicly available in 1994 and 1995, respectively.1 These services expanded rapidly in the late 1990s, with an increasing number of mobile service providers entering the Indian market, as well as with the opening up of the internet-service provider (ISP) sector in 1998 through the Central Government’s New Internet Policy.2 Most major public encounters with state-driven attempts to monitor and regulate access to these technologies began during the first half of the current decade. Internet freedom in India faces threats, however, particularly due to increasing state regulation in response to the authorities’ rising abilities to control the internet, as well as regulation by different private interests and local political groups.
Obstacles to Access
Infrastructure limitations and cost considerations restrict access to the internet and other information and communication technologies (ICTs) in India. Though regarded by some as the country with the fourth-highest number of internet users globally, the degree of internet penetration in India is low. Although the actual figures are disputable given that different sources have presented different findings,3 the cited figure of 82 million internet users in India pales in comparison to the total population, representing a maximum penetration rate of approximately 6.9 percent of the population.4 Within this, there is a pronounced urban-rural digital divide, with the approximate rural user base only 5.5 million. Thus, on average, there are at least ten times more urban internet users than rural internet users in India.5 While approximately 37 percent of India’s internet users access the internet via cybercafes, the number accessing the internet from home computers has increased.6 Low literacy rates are also a major obstacle in permitting many Indian citizens to use the internet, especially in rural areas.7 Though growing, the availability of internet content in India’s eight most widely-spoken languages is poor, with the current number of local language websites as low as 1,500.8
The overall mobile phone penetration figures are much better, with around 31 percent of the population using mobile phones, and the total national mobile subscriber base estimated at 347 million.9 Despite the global economic crisis and the high level of poverty in India, the mobile phone market continues to increase at an astonishing rate; statistics indicate that in September 2008, India’s mobile market grew at the rate of four new phone subscribers every second.10 While Indians use SMS messaging as a feature of their mobile phones, the number of messages is generally lower than in surrounding countries due to higher taxes on SMS messages. Since the deregulation of the telecom and ISP sectors in the late 1990s, users in India have had a choice between a number of different public and private providers. Bharat Sanchar Nigam Limited (BSNL; a state-owned public enterprise) and Videsh Sanchar Nigam Limited (VSNL; formerly state-owned and now privately-owned) are the two service providers with the most dominant market share, followed by wholly private service providers such as Sify Limited, Bharti Infotel, and Reliance Communications, among others.11
By and large, there has been no sustained government policy or strategy to block access to most categories of internet technologies or digital applications. Attempts to filter content have originated at the level of executive action by state governments, as well as by private individuals through court cases. Such attempts have focused on ordering ISPs to block access to social networking websites such as Orkut due to concerns about content,12 as well as to block access to Google Earth due to national security concerns.13 In November 2008, Indian authorities reportedly asked citizen journalists to stop updating their Twitter accounts with information on the Mumbai terrorist attacks, arguing that the posts were creating a security threat.14 There is currently no sustained blocking of entire online media services or blogging platforms; the widespread blocking of Geocities in 2003 and blogging platforms in 2006 were the result of over-blocking by ISPs in the process of carrying out the government-mandated filtering of specific sub-domains, causing the collateral blocking of entire websites.15 In May 2008, the central government threatened to ban Research-in-Motion’s Blackberry service from continuing to operate in India due to the firm’s refusal to facilitate the interception and decryption by Indian government agencies of information communicated across its network.16
The Telecom Regulatory Authority (TRAI) of India is the main regulatory body with respect to telecommunications matters; however, the scope of its regulatory power over internet matters in India is somewhat unclear given that the Ministry of Telecommunications and Information Technology, along with the Ministry of Home Affairs, also exercise control over several aspects of internet regulation. TRAI functions as an independent regulator with public consultations and other participatory decision making processes, while the Ministry of Telecommunications and Information Technology and the Ministry of Home Affairs function as government departments tied to the ministerial structure of the central government.
Limits on Content
Prior to 1999–2000, the then state-owned company VSNL had a monopoly in the ISP sector and sporadically filtered internet content. The two main publicly-known instances during this time pertained to blocking access to the website of The Dawn, a Pakistani newspaper, for the duration of the Kargil conflict.17 Since 2003, the institutional structure of internet censorship and filtering in India has centred around the Indian Computer Emergency Response Team (CERT-IN), a body within the Department of Information and Technology. This body was created by a 2003 executive notification to be a nodal agency for accepting and reviewing requests from a designated pool of government officials to block access to websites. When CERT-IN decides to block a website, it directs the Department of Telecommunications to order all Indian ISPs licensed by it to comply with this order.18 Among the noteworthy instances of such blocking was the Yahoo! group Kynhun (linked to the Hynniewtrep National Liberation Council) in 2003, and 17 various websites and blogs in 2006.
Police agencies in different states have also played a role in attempting to mandate internet censorship and surveillance, most notably in the state of Maharashtra.19 Instances in which websites and blogs were blocked due to national security, secessionist, and hate speech threats took place in 2003 and 2006, but were disjointed in their technical operation and were more event-specific in nature.20 There has been no sustained state-mandated process of internet censorship or blocking, though some reports indicate that more sophisticated filtering mechanisms are being installed at the level of ISP gateways at the instruction of the central government.21
The Indian blogosphere is quite active, complimenting the rise in internet use by different interest groups as well as by civil society actors. The actual number of bloggers, though, still appears to be quite low, and the blogosphere is potentially fragmented given the large number of blogging platforms available.22 Online communication and social networking services are increasingly being used as means to organize politically, as evidenced by prominent instances such as the meetings and rallies organized to protest the November 2008 terrorist attacks in Mumbai, the outcry against the blocking of blogging platforms in 2006, and social mobilization movements such as Blanknoise, among others.23 Bloggers utilized the internet to voice concern and frustration over the inadequacy of government security capabilities after terrorist attacks throughout 2008, questioning that bombings were becoming a regular occurrence in India and predicting which city would fall victim next.24 There was also extensive debate on the blogosphere over attacks on Christians by groups of radical Hindu nationalist rioters in various Indian states.25
Violations of Users’ Rights
Article 19(1)(a) of the Constitution explicitly protects the right to freedom of speech and expression, subject to reasonable restrictions that the state can impose. However, its application vis-à-vis internet content has not yet been directly clarified by a judicial ruling, though positive remarks regarding its applicability have been made in passing in cases decided by the Bombay High Court and the Supreme Court of India.26 Article 19(1)(a) has also been held to apply—along with the right to life and liberty under Article 21—to the privacy of telephone communication, with guidelines established regulating the ability of state officials to intercept communication under the broad power granted to them by the Telegraph Act.27
The legal landscape for internet communication is laid out by statutes such as the Telegraph Act, the Indian Penal Code, the Code of Criminal Procedure, and the specialized provisions of the Information Technology Act (ITA). The ITA, enacted in 2000, was extensively amended by Parliament in December 2008 in three significant ways. First, it penalizes those who refuse orders from authorized state agencies to intercept or decrypt information. Most notably granting legislative sanction to the central government’s power to order that a website be blocked. It may be argued that the grounds listed in the amended law for the exercise of this power do not conform with the constitutionally permissible restrictions on the right to free speech listed by Article 19(2).28 Secondly, these amendments have considerably broadened the scope of activity criminalized by the statute, in particular: sending messages deemed offensive, dishonestly receiving stolen computer resources or communication devices, identity theft, impersonation, violation of bodily privacy, cyberterrorism, the publication or transmission of sexually explicit material, and child pornography.29 Finally, the amendment strengthens the immunity of network intermediaries (a category that can be roughly held to cover both ISPs and online service providers) from prosecution for offences under the statute, although to a lesser extent than the wide safe harbour rule that was originally intended to be introduced.30 This immunity to network intermediaries was created in response to the high profile prosecution of the CEO of Bazee.com (now eBay India) by the Delhi Police for a controversial sexually explicit video clip uploaded via the service. On appeal, the Delhi High Court upheld its ruling (released before the ITA Amendment Bill was passed) that a case could in fact be made for intermediary liability for obscene content under the statute.31 The substantive trial in the case is yet to be completed, however. The amended position in the ITA vis-à-vis the exemption of intermediaries from liability removes the burden of proof from intermediaries.32 It is important to note that this amendment necessitates not only that service providers act when informed about their involvement in unlawful acts by state agencies, but that they must also observe guidelines that the central government might prescribe as to the due diligence they have to discharge.33 These guidelines have not yet been publicly framed or notified. Overall, there seem to be few regular prosecutions under this statute, with 2006–2007 figures showing 99 cases registered with police units regarding the transmission of obscene content, and two cases regarding the failure of parties to comply with decryption as per the pre-amendment statute.34
The regulations found in the ITA may oblige companies to give up the names of individual users to demonstrate their own innocence and a company is presumed responsible for the content posted on the websites it hosts unless it can prove that it was not aware of the content posted by an individual user.35 As a result, internet bloggers have individually experienced prosecution by Indian authorities for online postings. In May 2008, two men were arrested and charged under both the Indian Penal Code and the Information Technology Act for posting derogatory comments about Congress chief Sonia Gandhi on a community on the social networking site Orkut. While the text was posted on a community entitled “I hate Sonia Gandhi”, the person who formed the community did not face charges as voicing a personal dislike is protected in India under freedom of choice.36 Google, owners of Orkut, accommodated the authorities’ request for the poster’s identity.37 Authorities have subsequently ordered Google to disclose additional bloggers’ personal information for other court cases in India, including defamation suits.38
The exact shape and extent of surveillance of both internet communication and mobile-phone networks in India is currently unclear. Wire intercepts of telephone conversations are allowed under the guidelines prescribed by the Supreme Court,39 and their admissibility as evidence in a court of law is not constrained by the legality of the process in which such evidence was procured.40 The extent and level of sophistication of state surveillance of internet communication in India is unknown, though anecdotal accounts indicate that the government’s Intelligence Bureau began using a keyword-based interception system in addition to targeted-IP address interception as far back as 2001.41 There is no requirement for prior judicial approval before intercepting communication either under the Telegraph Act or the ITA, and the post-amendment ITA grants both central and state governments the power to issue directions for the interception, monitoring, or decryption of computer information, while leaving the prescription of procedure and safeguards for the exercise of such powers to the government itself.42 It also grants the central government the power to mandate the preservation and retention by intermediaries of such information, and makes the contravention of such orders an offence.43 The monitoring and collection of traffic data by a government agency for the purposes of enhancing cybersecurity and network protection is also a power vested in the central government to exercise according to the amended statute.44
Cybercafes are regulated across most Indian states; the exact extent and manner of regulation varies according to the policies of the different state police forces concerned, but largely focus on the elimination of anonymous access by mandating the recording of certain basic user details in registers as a minimum requirement.45 Some cybercafes may request a passport photo for their records or demand specific reasons for visiting cybercafes outside their localities.46 With respect to mobile phones, the Department of Telecommunications has instructed operators to only issue and activate mobile SIM cards after users register their personal details with these companies; the rationale being that this helps ensure national security by preventing terrorists from easily securing anonymous access to SIM cards.47 This system has been in place for some time, but became the subject of increased emphasis and oversight after the November 2008 Mumbai attacks, with the central government not only castigating mobile operators on their implementation of the verification process, but also reportedly asking them to disconnect all handsets that do not have international mobile equipment identity (IMEI) numbers.48
There have been past incidents involving service attacks and the hacking of websites by nonstate actors during incidents of cross-border tension with Pakistan and China,49 particularly between 1998 and 2002, and during 2008.50 Thus far, however, online journalists and bloggers have not been victims of physical attacks.
1 See Access Denied: The Practice and Policy of Global Internet Filtering 287 (Ronald Deibert et al eds. 2008) [hereinafter referred to as ‘Open Net Initiative - Access Denied: India Profile’], and Cellular Operators Association of India, History of Cellular Telephony in India, at http://www.coai.com/historyIndia.php.
2 See Vikram Raghavan, Communications Law in India 472-473 (2007)
3 C.P. Chandrashekhar, India is Online but Most Indians are Not, Macroscan, (September 26th, 2006), http://www.macroscan.org/the/services/sep06/ser260906India_Online.htm
5 IAMAI & IMRB, I-Cube 2008: Internet in India – Summary Report, at http://www.iamai.in/Upload/Research/I-Cube_2008_Summary_Report_30.pdf, accessed December 2008
7 See IAMAI & IMRB, supra note 4
8 IAMAI & IMRB, Vernacular Content Market in India Report, at http://www.iamai.in/Upload/Research/Vernacular%20Content%20Report_29.pdf, accessed December 2008
10 “India, 4 new mobile phone subscribers every second,” Textually.org, October 22, 2008, http://www.textually.org/textually/archives/2008/10/021533.htm, accessed December 2008
11 See Telecom Regulatory Authority of India, TRAI Annual Report for 2006-07 63 (available at http://www.trai.gov.in/annualreport/AReport2006-07English.pdf)
12 See Google's social networking site in trouble, The Times of India (2006), http://timesofindia.indiatimes.com/articleshow/2136970.cms, accessed December 2008 and Amit Varma, Orkut and censorship in India, India Uncut (2007), http://indiauncut.com/iublog/article/orkut-and-censorship-in-india/, accessed March 30, 2000. See also Open Net Initiative - Access Denied: India Profile, at 289-291
13 See PIL asking Google to remove India from Google Earth, pluGGd.in (2008), http://www.pluggd.in/india-internet/pil-asking-google-to-remove-india-from-google-earth-3305/, accessed March 30, 2009, and Rhys Blakely, Indian court asked to ban Google Earth, Times Online (2008), http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article5314085.ece, accessed March 30, 2009. See also J.Mohanraj vs The Secretary to Government (Home), Madras High Court Writ Petition No.29713 of 2008, decided on 17 December, 2008 (available at http://www.indiankanoon.org/doc/1191397/) (holding that the Madras High Court could not grant a public interest litigation plea to ban Google Earth).
14 Times Online, “Citizen journalists told to stop using Twitter to update on Bombay attacks,” November 27, 2008, http://technology.timesonline.co.uk/tol/news/tech_and_web/article5245059.ece, accessed March 30, 2009
15 See Open Net Initiative - Access Denied: India Profile, at 290. See also Sandeep Dikshit, Bid to block anti-India website affects users, The Hindu (2003), http://www.thehindu.com/2003/09/23/stories/2003092312761100.htm, accessed March 30, 2009, and Editorial Opinion, Censorship of Internet, The Hindu, (2003), http://www.thehindu.com/2003/10/21/stories/2003102101231000.htm, accessed March 30, 2009. Shivam Vij, Blog blockade will be lifted in 48 hours, Rediff News (2006), http://www.rediff.com/news/2006/jul/19blogs.htm, and Shivam Vij, Possible action against ISPs for blocking sites, Rediff News (2006), http://www.rediff.com/news/2006/jul/20dot.htm.
16 Blackberry spurns Indian spy call, BBC, May 27, 2008, http://news.bbc.co.uk/2/hi/south_asia/7420911.stm, accessed March 30, 2009. See also Press Trust of India, India backs DoT on Blackberry; asks RIM to cooperate, The Times of India, (May 11 2008), http://timesofindia.indiatimes.com/Business/India_Business/India_backs_DoT_on_BlackBerry_asks_RIM_to_cooperate/articleshow/3030151.cms, and Ketan Tanna, Outsmarting Big Brother, The Times of India, (June 8 2008), http://timesofindia.indiatimes.com/Sunday_Specials/Outsmarting_Big_Brother/articleshow/3110252.cms.
17 See Farzad Damania, The Internet: Equalizer of Freedom of Speech? A Discussion on Freedom of Speech on the Internet in the United States and India, 12 Indiana International & Comparative Law Review 243, 259 (2002).
18 See Open Net Initiative - Access Denied: India Profile, at 290. See also Raman Jit Singh Chima, The Regulation of the Internet with relation to Speech and Expression by the Indian State 32-36, 53-54(April 25, 2008). Available at SSRN: http://ssrn.com/abstract=1237262.
19 See Open Net Initiative - Access Denied: India Profile, at 288-289. See also Chima, supra note 16, at 55-58.
22 Frederick Noronha, Blogging: Can ICTs Really Make Free Speech a Reality in India?, Indiablogs, (February 02, 2006), http://indiaweblogs.blogspot.com/2006/02/blogging-can-icts-really-make-free.html, accessed March 30, 2009. See also Blogging India: A Windows Live Report (Press release with summary of findings available at http://download.microsoft.com/download/d/3/b/d3b7d5c9-6005-434c-8e71-822678b15eac/pr_271106.doc).
23 See Claudine Beaumont, Mumbai attacks: Twitter and Flickr used to break news, Telegraph.co.uk, November 27, 2008, http://www.telegraph.co.uk/news/worldnews/asia/india/3530640/Mumbai-attacks-Twitter-and-Flickr-used-to-break-news-Bombay-India.html, accessed March 30, 2009; and Rachel Dixon, 2008’s Top 10 Moments in User-Generated News: Mumbai Attacks, NowPublic, (December 15, 2008), http://www.nowpublic.com/tech-biz/1-mumbai-attacks-2008-review, accessed March 30, 2009. See also Pramod K. Nayar, India goes to the blogs: Cyberspace, identity, community, in Popular Culture in a Globalised India 207 (2009), and http://blog.blanknoise.org/
24 Global Voices Online, “A Turbulent Year for South Asia,” December 27, 2008, http://globalvoicesonline.org/2008/12/27/2008-a-turbulent-year-for-south-asia/, accessed March 30, 2009
26 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, and Ajay Goswami v. Union of India (2007) 1 SCC 143
27 PUCL v. Union of India (1997) 1 SCC 301. See also Raghavan, supra note 2, at 760-761
28 See Section 69A of the amended Information Technology Act, and Chima, supra note 16, at 32-36
29 See Sections 66A, 66B, 66C, 66D, 66E, 66F, 67A, and 67B of the amended Information Technology Act
30 Information Technology Amendment Bill, 2008 (available at http://126.96.36.199/BillsTexts/LSBillTexts/PassedLoksabha/96-c%20of%202006.pdf). A summary of the previous version on the amendment bill is available at http://www.prsindia.org/docs/bills/1192012012/1192012012_96_2006.pdf and the report of the Parliamentary Standing Committee whose comments seem to be the reason why the amendment was changed is available at http://188.8.131.52/committeereports/Information%20Technology/REPORT-I.T.-50E.pdf
32 Section 79 of the amended Information Technology Act
34 National Crimes Record Bureau, Crime in India Table 18.4 (2008) (available at http://ncrb.nic.in/cii2007/cii-2007/Table%2018.4.pdf)
35 “Bombay High Court: orders Google's subsidiary to reveal identity of blogger after posting critical comments,” IFEX, August 26, 2008, http://www.ifex.org/en/content/view/full/96437, accessed March 30, 2009
36 The Times of India, “One Held for Posting Obscene Orkut Message on Sonia,” May 19, 2008
37 Global Voices Online, “Google Assists Police in Orkut User’s Arrest,” May 22, 2008, http://advocacy.globalvoicesonline.org/2008/05/22/india-google-assists-police-in-orkut-users-arrest/, accessed March 30, 2009
38 “Google ordered to reveal blogger’s identity,” August 15, 2008, http://committeetoprotectbloggers.org/2008/08/15/google-ordered-to-reveal-bloggers-identity/, accessed March 30, 2009
39 Supra note 23.
40 See State (NCT of Delhi) v. Navjot Sandhu 2005(11) SCC 600
41 Siddarth Srivastava, India: E-mail users beware, Big Brother is watching, The Times of India, (December 24, 2001), http://www.blythe.org/nytransfer-subs/Covert_Actions/India:_E-mail_users_beware,_Big_Brother_is_watching, accessed March 30, 2009
42 Section 69(1) of the amended Information Technology Act
43 Section 67(C) of the amended Information Technology Act
44 Section 69B of the amended Information Technology Act
45 See Chima, supra note16, at 37-41
46 The Times of India, “ID proof must for cyber café users,” August 18, 2008
47 Special Correspondent, Centre to enforce SIM card verification process by cell phone operators, The Hindu, (December 26, 2008), http://www.hindu.com/2008/12/26/stories/2008122655831200.htm, accessed March 30, 2009
48 Rashmi Pratap, DoT asks cellcos to cut off handsets without IMEI code, The Economic Times, December 19, 2008, http://economictimes.indiatimes.com/News/News_By_Industry/Telecom/DoT_asks_cellcos_to_cut_off_handsets_without_IMEI_code/rssarticleshow/3859301.cms, accessed March 30, 2009
49 See Reporters Without Borders, Internet Under Surveillance 2004 – India, at http://www.rsf.org/article.php3?id_article=10750&Valider=OK, accessed March 30, 2009