“The issuance of new intermediary guidelines reflect that the BJP government is suffering from the ‘Big Daddy’ syndrome.”

The new rules are a severe blow to the vibrant culture of discourse, deliberation and dissent in India.

1. What the Modi government seeks to implement today, without recall or modification and despite unanimous condemnation from all segments of civil and political society, is the Modi government’s North Korean approach to free speech.

2. What is being brought into force from today is yet another attempt by the Modi government to capture and subordinate every pillar and agency of freedom of thought and expression. Having successfully done so in respect of constitutional and statutory bodies like CBI, ED, EC and several others, along with subjugation of the ‘Godi Media’, Modiji has now turned his attention to social media and social media platforms to annihilate all vestige of free speech, thought, and expression.

3. Dictatorial regimes, including the North Korean one, would blush at the brazenness with which the Modi government has done so. The Modi-led BJP government’s pathshala should be the new go-to place for all dictators to hone their skills in controlling free speech and thought.

4. When these Intermediary Rules were published on 25.05.2021, the heart and soul of their highly objectionable approach was reflected in Rule 4, which would be actionable after three months, ie from today. During this time, every protest, every entreaty, every demand and every request for recall and modification of such asphyxiating Rules have been ignored by this obstinate government and thrown into the dustbin.

5. From today, Rule 4 obliges all social media platforms to identify the first originator of the information, if so directed by the government under Rule 4(2). This introduces the requirement of traceability which would break end-to-end encryption. It should be noted that even previous proposals which seek to implement traceability in a manner which is supposedly compatible with end to end encryption have been shown to be vulnerable to spoofing where bad actors can falsely modify the originator information to frame an innocent person.

6. The grounds for such draconian directions have deliberately been kept delightfully vague, including Rule 4(2) which allows an order to be passed “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order… ”.

7. Under clause 3 (d), all platforms have to remove any content deemed objectionable by the application, not by any court, but by the ministry of such broad thresholds as quoted above.
8. Under clause 3(b) (i), any data may be commanded by the government to the platform to be removed on such utterly broad words :”belongs to another person and to which the user does not have any right”. Forwards of research or analysis on what’s Ap to groups could be stopped under this deliberately overbroad definition; ​​​

9. For the last seven years, the definition of the ruling party and Government of such broad words, includes the mere registration of sedition offences, which in turn includes, in the new Orwellian definition of the Modi government, all criticisms of the PM or the HM, criticism of COVID-19 management, any questioning of authority, all attempts to show truth to power and so on. We can all imagine how these rules will be misused every day to terrorise social media.

10. Any infraction of the Rules would, under Rule 7, take away the protection given by the parent act under Section 79, which exempts the intermediary social media platforms from direct punishment and consequently, any mischievous application of Rule 4 (2) would directly make the social media platform liable for third party content over which they have no control.

11. An additional delicious irony of Rule 7 is that the rule seeks to amend the parent act and to remove the protection given by Section 79 of the parent act without amending the act itself.

12. In adopting this ‘Bull in a China Shop’ approach, where the bull is the Modi government and the delicate China shop is the hallowed and cherished principle of free speech, the Modi government has forgotten all the safeguards and protections accorded to social media by the landmark Shreya Singhal case.

13. Equally, the obsessive mindset of this government to act as control freaks for all and sundry, bent upon strangulating free speech, thought and expression, it has also thrown out of the window all principles of privacy elaborated in the famous Puttaswamy judgment of the Supreme Court by the nine-judge bench on 24.08.2017 ((2017) 10 SCC 1).

14. In the judgment, one out of many relevant paragraphs may be quoted:
a. “[I]t is privacy which is a powerful guarantee if the state were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”

15. In contrast, in Chapter-IV of the new rules, the Modi government has self-appointed the Ministry of IT to act as ‘Big Daddy’ in the name of an oversight mechanism. If this ‘Big Daddy’ does not agree with the self-regulation done by the social media platform itself at level-1 or disagrees with the decision of the self-regulation institutional body at level-2, rules 13 and 14 allow an inter-departmental government committee to make recommendations over-ruling level-1 and level-2, decisions, exercising direct content censorship and empowering itself to direct that content of any person or sender or publisher is blocked under Section 69-A of the parent act, merely because the platform does not comply with the wide and subjective tests listed in the rules and appendix to the rule.

16. In this manner, by a big daddy committee of contro, the Modi government is the first to create a social media police and make the Committee and the IT Ministry the principal Thana for digital and social media platforms.

17. As an example, in the Appendix, clause II again uses the broad words viz “sovereignty and integrity of India, endangers or jeopardises the security of state, detrimental to India’s friendly relations with foreign countries, and likely to incite violence or disturb the maintenance of public order”.

18The problem is not with these words, some of which are found in the Indian constitution also. The problem lies in Modiji’s New India, where every dissatisfaction is sedition and every dissent is a disturbance. In the hands of such an Orwellian world and such a dictatorial ambiance, Appendix II rules permitting draconian and adverse consequences are only meant to terrorize, strangulate and stifle free thought and expression in the social media arena which the BJP and the Modi government now sees as a threat to itself.

19. Free speech and expression is like oxygen. Without it, humanity and democracy cannot survive. Having diminished the latter so much during COVID, we beseech the Modi government not to emasculate the former.

20. Let us not forget that encryption is the technological backbone of privacy. This is particularly true of messaging apps, the most important subset of social media and digital platforms.

20 Neither we nor the nation is surprised. Nobody could expect better from the BJP and the Modi govt. After all, as far as dissent, disagreement, free thoughts, expression, and speech is concerned, the milestones achieved by this government include the following:
a. Legal action including sedition was initiated against youth helping patients with oxygen in Uttar Pradesh

b. Delhi Police registered 17 FIRs and arrested 15 people for posters critical of PM Modi

c. More than 50 journalists working in rural areas were arrested or had police complaints registered against them, or were physically assaulted for their COVID-19 reportage.
Enough is enough. We should all speak in one voice against such invasions of our freedoms and autonomy.