11 Dec 24 | India, News and features
What connects cricket fans, protesters and journalists in India? They have all fallen foul of India’s outdated sedition law.
According to the Indian watchdog, Article 14, between 2010 and 2021, 13,000 people have been charged with sedition. When the conviction rate for concluded cases remains low – approximately 0.1% – and those accused of sedition spend an average of 50 days in prison until a court grants bail, the bite of this law is not necessarily a prison sentence, but the long and unpredictable time spent in pre-trial detention.
The original clause was not of India’s own making. It formed part of the Indian Penal Code (IPC) that was imposed by British colonial rule. However, following independence, successive Indian governments found the code to be a helpful cudgel when trying to restrict free speech. In 2023, the Indian Government, led by Narendra Modi’s BJP party, proposed the Bharatiya Nyaya Sanhita (BNS), a reform to the penal code to remove the colonial stain from India’s law books. When the bill was presented to parliament, the Home Minister Amit Shah said this about the existing penal code: “The foundation of these procedures was to protect the British, not the common people of India.”
But the reform was an example of decolonisation in name only.
In terms of sedition, the bill did little to protect the “common people of India”. In fact, it went further than simply transferring the existing sedition provisions – it modernised and expanded them. The new section 152 of the BNS covers online and financial actions that “excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India”.
It is hard to shake the belief that the motivation underpinning the reform was to maintain the government’s ability to shut down independent and protected speech, under the guise of taking back control. The relabelling of the sedition provision came after the Supreme Court, in 2022, heard petitions related to the existing sedition provisions in the IPC. The court stated that “we hope and expect that the State and Central Governments will restrain from registering any FIR [First Information Report], continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.” However strongly held the hope was, it was not strong enough to curtail the government’s legislative intentions.
Only a week after the BNS bill was put into effect on 1 July 2024, two freelance journalists Zakir Ali Tyagi and Wasim Akram Tyagi had First Information Reports, or FIRs, lodged against them for their reporting on an alleged lynch mob attack in Uttar Pradesh. While not using the sedition clause, this was only a sign of things to come.
The co-founder of Alt News, Mohammed Zubair, is no stranger to pressure and threats related to his journalism, fact-checking and use of social media. Two years ago he was stuck in a seemingly unending cycle of persecution following his online reporting of statements made by a BJP spokesperson. A cavalcade of FIRs were issued against him and whenever he was granted bail in one case, another FIR would be lodged. Ultimately six were lodged against him, ensnaring him in a 24-day cycle of arrest, bail and re-arrest. It took the intervention of the Supreme Court to break the cycle but it didn’t take long for the threats to escalate.
On 29 September 2024, the controversial Hindu priest Yati Narsinghanand held an event at Hindi Bhavan in Ghaziabad, Uttar Pradesh, during which he allegedly made “objectionable remarks against Prophet Muhammad”. Zubair used his X account to highlight these remarks, as well as others allegedly made by Narsinghanand in relation to the role of women in politics, and soon found himself the target of a FIR, brought by the priest’s supporters, which was lodged on 6 October.
However it was not until 27 November that it was revealed that the sedition clause of BNS had been invoked against Zubair, alongside a number of other charges. On the same day, Zubair claimed that police officers from Uttar Pradesh and Karnataka visited his family house and the house of his neighbour inquiring after his location, searching their property for him and searching their computers and mobile phones.
The case is expected in court in the coming months after a bench of judges at the Allahabad high court recused themselves during a hearing last week. But this case should put to bed any hopes that the BNS had taken the sting out of India’s brutal, ineffective and out-dated sedition provisions.
When it comes to threats to civil liberties and free expression in India, it is a decidedly crowded field. The BNS is not the only vehicle of jeopardy for anyone speaking out.
For instance, the Unlawful Activities (Prevention) Act (UAPA) is similarly directed at threats of terrorism and anti-state agitation but has been used to stamp out dissent, most notably in the Kashmir and Jammu region. Online speech has similarly been restricted through the extensive use of the Information Technology Act and IT Rules and the widespread use of internet shutdowns, for reasons as diverse as elections, protests and school exams. Many activists, academics and campaigners have rung the alarm bell regarding the recently passed Telecommunications Act as another legislative threat to online speech. These laws lay a narrow path through which people in India can express themselves free from the threats of judicial persecution.
As long as the “world’s largest democracy” holds onto outdated and repressive laws, relabels colonial era laws instead of reforming them, and presents independent reporting as a threat to the state, this title holds little meaning. Like the BNS, it is little more than a name.
07 Nov 24 | India, News and features, Volume 53.03 Autumn 2024
The four editors of Assam’s English daily, The Drongo Express, meet in person once or twice a month. They sit hunched over their laptops and notebooks – either at parks or in someone’s house in Diphu, where the paper is headquartered – figuring out how to keep their newspaper afloat.
One of them, Helvellyn Timungpi, from the tribal district of Karbi Anglong, told Index: “Last year, our publisher decided to walk away from the newspaper. We who were on the editorial board came together and signed the partnership deed and got a transfer of ownership. We didn’t have any other employment, and we wanted to stop this newspaper from going down the drain.”
Like many newspapers in North East India – which is made up of eight states including Assam – The Drongo Express relies heavily on advertisements placed by government departments. “We haven’t received a single penny since last October,” said Timungpi.
“If we were receiving our bills regularly, we would be OK.”
Home to about 140 notified Scheduled Tribes [indigenous groups], the region remains poorly covered by the mainstream media. Most Delhi-based media houses continue to employ just one reporter in the region. Others send journalists to cover only stories of extreme violence – for instance, the ongoing ethnic conflict in Manipur or the botched security operation in Nagaland that led to several civilian deaths. Local news channels, newspapers and websites have played a significant role in filling this gap.
Karma Paljor, a former news anchor and founder of EastMojo – the first and only independent digital news outlet that primarily covers the North East – said media ownership was a big problem.
“Anyone with a reasonable amount of money, including contractors, lobbyists and politicians can start a media organisation,” he said. “There are very few newspapers here that stand for balanced news.”
The demographic complexity of the region also plays a part.
“On account of the region’s layered contemporary history as well as ethnic and linguistic faultlines, most local publications do tend to be nativist and, in many cases, unabashedly take sides on polarising topics such as immigration,” explained Tora Agarwala, an independent journalist based in Assam.
Media organisations in the region are often faced with a lack of revenue and resources. Kenter Joya, the managing editor of the Arunachal Pradesh-based Eastern Sentinel, said: “The cost of printing papers is 15 rupees, and we are selling it at three rupees. Vendors take 50% of this money … we try to make it up through advertisements from state government, which constitute 65% of advertisements placed, and corporate advertisements.
“Annually, bi-annually, we receive only 50-60% of what we are owed for the advertisements.”
She said she wondered if payment was being withheld as a form of punishment.
Meanwhile, repeated calls for subscriptions, especially by independent outlets such as EastMojo, haven’t yielded many results.
“The people of the North East are not aware of the power of media, hence they aren’t able to fathom why they should support us,” Paljor said.
“I don’t know who to blame,” said an exasperated Timungpi. “No matter how penniless I become, I want to cling to this profession. But it pains me when my three children have nothing to eat.”
28 Aug 24 | Asia and Pacific, India, News and features
On 1 April, less than a month before India went to the polls, a young YouTuber named Dhruv Rathee released a video calling India’s Hindu nationalist prime minister a dictator. Speaking in a loud, declamatory style, Rathee delivered fact after fact, laying out how Narendra Modi had tried to throttle Indian democracy. The video ended with an appeal to vote against the Prime Minister.
At the time of writing, Rathee’s harangue had garnered an incredible 37 million views on YouTube. This number does not capture the fact that many Indians would have viewed this video as a “forward” on WhatsApp. With an incredible 24.6 million subscribers, Rathee is the person Indians increasingly turn to when they want to consume current affairs. And he’s not the only one. Ravish Kumar, one of India’s most well-known journalists, now broadcasts on YouTube with nearly 12 million subscribers. These one-person YouTube channels frequently garner more views and subscribers than corporate-funded mainstream media channels.
For a decade now, India’s mainstream media has stopped doing the job it’s meant to do – holding the powerful to account. Using a mixture of carrot and stick, Modi has ensured his government has little to fear from traditional broadcasters or newspapers. The result: Indians are now increasingly turning to the internet for news and opinion. This trend is so significant that Modi is making increasingly desperate attempts to control what takes place online.
Throttling the press
As a wave of autocratic strongmen sweeps the world, arguably Modi leads the pack. The power he commands in India and the ideological changes he has made to the country have few parallels either globally or in India’s own history. The tactical keystone of this politics? Control over the country’s media.
In 2014, India’s Congress-led liberal coalition crashed to a defeat, bringing Modi to power. This loss was portended by loud television debates bashing the government over corruption, women’s safety and, most of all, so-called Muslim appeasement. Once he came to power, Modi had digested that hard political lesson and was determined to ensure that it would not happen to him.
This was relatively easy to do given the Indian media’s structure. Owned by large corporations who looked to curry favour with the government, India’s powerful national television channels bent over backwards for Modi. In 2022, NDTV, India’s last news network not seen to be pro-Modi was acquired: a billionaire who is not only seen as Modi’s close ally but one whose remarkable rise has been facilitated by his government. The change of NDTV’s ownership was like flipping a switch: the network simply stopped doing any critical reporting, leading to an exodus of its top journalists.
If not directly controlled through a proprietor, the Modi government can also influence media houses through ad spending. Oddly enough, the main source of advertising income for legacy media houses in India is the government. Previously, the Modi government has withheld ads from media houses seen as being critical of the government.
Carrot to stick
What happens if a media house does not bend to Modi? In that case, Indian law provides massive powers to the federal government to regulate and even ban television networks. In 2022 the Modi government peremptorily shut down a Malayalam-language news channel, MediaOne, citing “national security” as a reason. While the ban was later reversed by the Supreme Court, the action had a chilling effect on news networks, which simply cannot afford to be yanked off air overnight.
Starting in 2020, the Modi government employed even harsher provisions against a small, left-wing website called NewsClick. First, India’s severe money-laundering laws were deployed against the media outlet. Not satisfied, the government then charged it under India’s draconian terror legislation, which provides for long prison terms even before a court pronounces on the guilt of the accused. Newsclick’s founder, Prabir Purkayastha, found himself spending more than seven months in jail before the Supreme Court granted him bail.
Modi has not been shy of using similar tactics against the BBC. In 2023, the government launched income tax raids against the British broadcaster’s offices in Delhi after the network aired a documentary that was critical of Modi’s role as chief minister in the 2002 anti-Muslim riots in Gujarat.
All this creates a climate where outright violence against journalists is common. Since Modi took power 28 journalists have been killed. Reporters without Borders calls India “one of the world’s most dangerous countries for the media”.
Broadcast Bill
With the traditional media subdued, Modi is now swivelling his guns towards the internet. In 2023, the government released a new Broadcasting Services (Regulation) Bill looking to regulate television and OTT internet broadcasters. However, in 2024 a new draft significantly expanded the bill’s scope to include internet content creators, apparently driven by the critical role social media had played in the 2024 general election where Modi sustained considerable losses.Copies of this bill were circulated privately by the Modi government and then, just as abruptly, withdrawn.
Even as the exact status of the bill remains unclear – is this truly a withdrawal or a tactical retreat before the final charge? – the provisions in the 2024 draft version are a good pointer as to the scope of Modi’s ambitions when it comes to controlling India’s internet.
The 2024 draft bill, for example, demanded that content creators subject themselves to a draconian regulatory regime designed expressly to stifle free expression. The bill called for content creators to set up “content evaluation committees” which would need to approve the majority of content before it was broadcast (certain programmes such as news and current affairs programmes were exempt), appoint a grievance officer and join a government-approved “self-regulatory organisation” to address grievances as well as ensure compliance with the relevant codes that would be drafted by the government alone. A new Broadcast Advisory Council would have been created by the Indian government which would, in turn, sit above, these self-regulatory organisations.
The entire edifice is a marvel of Orwellian “red tape-ism”, not only bringing content creators under government regulation but making them pay for it themselves. This is significant since adherence to the relevant provisions in the bill would represent a significant, even crippling, cost for small outfits or individual content creators.
How successful has Modi been in his desire to curb free expression in India? While he has achieved a substantial number of his goals, it is credit to India’s democratic traditions that the country’s media has not bent in its entirety. While major media houses are unlikely to play their role as watchdog, independent media and even individual content creators have stepped in to do the job. In fact, the fierce criticism Modi faced when he released the draft of the Broadcast Bill is a fine example of how India’s democratic traditions are trying to push back against curbs to free speech. It is not insignificant that Modi withdrew the draft bill and has gone back to the drawing board on trying to control the internet.
06 Jun 24 | Asia and Pacific, India, News and features
In India, the largest practical exercise in electoral politics the world has ever seen has just come to an end. Narendra Modi and his BJP party has been returned to power for an unprecedented third term, although without an outright majority. While there are many priorities facing the new administration, one of them will undoubtedly be modernising India’s outdated online regulatory framework.
The growth of internet access in India has been exponential. According to the Ministry of Electronics and Information Technology (MeitY), in 2000 5.5 million Indians were online; last year that number was 850 million. To look at India’s increasing economic and geopolitical clout is to also see a country willing to take on the tech giants to control India’s image online. The Indian government has not tiptoed around calling for platforms such as X and YouTube to remove content or accounts. According to the Washington Post, “records published by the Indian Parliament show that annual takedown requests for posts and accounts increased from 471 to 6,775 between 2014 and 2022, with those to Twitter soaring from 224 in 2018 to 3,417 in 2022.”
India’s online regulatory regime is over 20 years old and with the proliferation of online users and the emergence of new technologies, its age is starting to show. India is not alone in wrestling with this complex issue – just look at the Online Safety Act in the UK, the Digital Services Act (DSA) for the EU, as well as the ongoing discussions around Section 230 of the Communications Decency Act in the USA. Following the election, the current government has confirmed its intention to update and expand the regulation of online platforms, through the ambitious Digital India Act (DIA).
The DIA is intended to plug the regulatory gap and while the need is apparent, the devil will be in the detail. MeitY has stated that while the internet has empowered citizens, it has “created challenges in the form of user harm; ambiguity in user rights; security; women & child safety; organised information wars, radicalisation and circulation of hate speech; misinformation and fake news; unfair trade practices”. The government has hosted two consultations on the Bill and they reveal the sheer scale of the Indian government’s vision, covering everything from online harms and content moderation to artificial intelligence and the digitalisation of the government.
Protections against liability for internet intermediaries hosting content on their platforms – often called Safe Harbour – has long defined the global discussions around online free expression and this is a live question hanging over the DIA. During an early consultation on the Bill held in the southern city of Bengaluru, Minister of State for Information Technology Rajeev Chandrasekhar posed the question:
“If there is a need for safe harbour, who should be entitled to it? The whole logic of safe harbour is that platforms have absolutely no power or control over the content that some other consumer creates on the platform. But, in this day and age, is that really necessary? Is that safe harbour required?”
What would online speech policy look like without safe harbour provisions? It could herald in the near total privatisation of censorship, with platforms having to proactively and expansively police content to avoid liability. This is why the European safe harbour provisions included in the EU eCommerce Directive were left untouched during the negotiations around the DSA. With the Indian government highlighting the importance of the DIA in addressing the growing power of tech giants like Google and Meta, with Chandrasekhar stating in 2024 that “[t]he asymmetry needs to be legislated, or at the very least, regulated through rules of new legislation”, gifting tech companies power to decide what can and can’t be published online would surely represent an alarming recalibration that appears to run at odds with the Bill’s stated aims.
The changing approach to online expression is also evidenced in the slides used by the minister during the 2023 Bengaluru consultation. For instance, the internet of 2000 was defined as a “Space for good – allowing citizens to interact” and a “Source of Information and News”. But for MeitY, in 2023 it has curdled somewhat into a “Space for criminalities and illegalities” and a space defined by the “Proliferation of Hate Speech, Disinformation and Fake news.” This shift in perception also frames how the government identifies potential online harms. During the consultation, the minister stated that “[t]he idea of the Act is that what is currently legal but harmful is made illegal and harmful.” A number of harms were included in the minister’s presentation, highlighting everything from catfishing and doxxing, to the “weaponisation of disinformation in the name of free speech” and cyber-fraud tactics such as salami-slicing. This covers a universe of harms that each would require distinct and tailored responses and so questions remain as to how the DIA can adequately address all these factors, without adversely affecting internet users’ fundamental rights.
As a draft bill is yet to be published, there is no way of knowing what harms the DIA will contain. Without this, speculation has filled the vacuum. To illustrate this point, the Internet Freedom Foundation has compiled an expansive list of what the Bill could regulate collated solely from media coverage of the Bill from July 2022 until June 2023. This included everything from “apps that have addictive impact” and online gaming to deliberate misinformation and religious incitement material. What is also shrouded in darkness so far is how platforms or the state are expected to respond to these harms. As we have seen in the UK and across Europe, without clarity, full civil society engagement, and a robust rights framework, work to address online harms can significantly impact our right to free expression.
For now, the scope and scale of the government’s ambition can only be guessed at. For Index, the central question is, how can this be done while protecting the fundamental right of free expression, as outlined in Article 19 of the Indian Constitution and international human rights law? This is an issue of significant importance for everyone in India.
This is why Index on Censorship is kicking off a project to support Indian civil society engagement with the DIA to ensure it is informed by the experiences of internet users across the country, can respond to the learnings from other jurisdictions legislating on the same challenges and can adequately protect free expression. We will be engaging with key stakeholders prior to and during the consultation process to ensure that everyone’s right to speak out and speak up online, on whichever platform they choose, is protected.
If you are interested to learn more about this work please contact [email protected]
Last year, we published an issue of Index dedicated to issues related to free expression in India. Read it here.
