Legal and regulatory frameworks
India guarantees freedom of speech and expression in its constitution, but reserves the authority
to impose reasonable restrictions in the interests
of the sovereignty and integrity of India, state
security, foreign relations, public order, decency,
or morality; or in relation to contempt of court,
defamation, or incitement to an offense. 12 Each
form of media—print, film, and television—is
governed by its own regulatory apparatus. For
example, the Press Council of India (PCI), a
quasi-judicial body with two-thirds membership
of representatives from print media, has a mandate to protect the independence of the press.
The PCI adjudicates complaints against the
media, issues normative guidelines, and performs a public education function. 13 In contrast,
films cannot be exhibited without certification of a
board appointed by the central government. 14
Private FM radio station ownership was legalized
in 2000, but ownership licenses were granted
only for stations airing entertainment or educational content; commercial and community FM
radio stations are not allowed to broadcast news
and current affairs. 15 The state still controls all AM
radio stations.
Until the late 1990s, the Indian government
had control over all aspects of the telecommunications sector—policy, regulation, and operations. 16 The New Internet Policy introduced in
November 1998 allowed private companies to
apply for licenses to become ISPs and either
lease transmission network capacity or build their
own, thereby ending the monopoly over domestic long distance networks of the Department of
Telecoms. Most, however, opted to use the lines
already established by the government. 17
In June 2000 the Indian Parliament created
the IT Act to provide a legal framework to regulate
Internet use and commerce, including digital signatures, security, and hacking. The act criminalizes the publishing of obscene information electronically, and grants police powers to search any
premises without a warrant and arrest individuals
in violation of the act. 18
The Indian Computer Emergency Response
Team (CERT-IN) was set up by the Department of
Information Technology under the IT Act to implement India’s filtering regime. 19 By stretching the
prohibition against publishing obscene content
to include the filtering of Web sites, CERT-IN was
empowered in 2003 to review complaints and act
as the sole authority for issuing blocking instructions to the Department of Telecommunications
(DOT). 20 Only specified individuals or institutions
can make official complaints and recommendation for investigation to CERT-IN, a list that is limited to high-ranking government officials, the
police, government agencies, and “any others as
may be specified by the Government.” 21 Many
have argued that giving CERT-IN this power
through executive order violates constitutional
jurisprudence holding that specific legislation
must be passed before the government can
encroach on individual rights. The blocking
mechanism created under the Act provides for
no review or appeal procedures, except in court,
and is permanent in nature. When CERT-IN has
issued orders to block specific Web sites, no
communication has been made to the public
beforehand. 22
Another basis for filtering was demonstrated
with the blocking of the site www.hinduunity.org
on April 28, 2004, reportedly ordered by the
Mumbai police on the grounds that it contained
inflammatory anti-Islamic material. 23 Police commissioners, who can exercise the powers of
executive magistrates in times of emergency, can
block Web sites containing material constituting
a nuisance or threat to public safety under
Section 144 of the Code of Criminal Procedure. 24
While major and small ISPs immediately complied with the blocking request, one of the
nation’s largests ISPs, Sify, refrained from blocking the Web site, arguing that only CERT-IN had
the authority to issue blocking orders. 25
288
Country Summaries
India guarantees freedom of speech and expression in its constitution, but reserves the authority
to impose reasonable restrictions in the interests
of the sovereignty and integrity of India, state
security, foreign relations, public order, decency,
or morality; or in relation to contempt of court,
defamation, or incitement to an offense. 12 Each
form of media—print, film, and television—is
governed by its own regulatory apparatus. For
example, the Press Council of India (PCI), a
quasi-judicial body with two-thirds membership
of representatives from print media, has a mandate to protect the independence of the press.
The PCI adjudicates complaints against the
media, issues normative guidelines, and performs a public education function. 13 In contrast,
films cannot be exhibited without certification of a
board appointed by the central government. 14
Private FM radio station ownership was legalized
in 2000, but ownership licenses were granted
only for stations airing entertainment or educational content; commercial and community FM
radio stations are not allowed to broadcast news
and current affairs. 15 The state still controls all AM
radio stations.
Until the late 1990s, the Indian government
had control over all aspects of the telecommunications sector—policy, regulation, and operations. 16 The New Internet Policy introduced in
November 1998 allowed private companies to
apply for licenses to become ISPs and either
lease transmission network capacity or build their
own, thereby ending the monopoly over domestic long distance networks of the Department of
Telecoms. Most, however, opted to use the lines
already established by the government. 17
In June 2000 the Indian Parliament created
the IT Act to provide a legal framework to regulate
Internet use and commerce, including digital signatures, security, and hacking. The act criminalizes the publishing of obscene information electronically, and grants police powers to search any
premises without a warrant and arrest individuals
in violation of the act. 18
The Indian Computer Emergency Response
Team (CERT-IN) was set up by the Department of
Information Technology under the IT Act to implement India’s filtering regime. 19 By stretching the
prohibition against publishing obscene content
to include the filtering of Web sites, CERT-IN was
empowered in 2003 to review complaints and act
as the sole authority for issuing blocking instructions to the Department of Telecommunications
(DOT). 20 Only specified individuals or institutions
can make official complaints and recommendation for investigation to CERT-IN, a list that is limited to high-ranking government officials, the
police, government agencies, and “any others as
may be specified by the Government.” 21 Many
have argued that giving CERT-IN this power
through executive order violates constitutional
jurisprudence holding that specific legislation
must be passed before the government can
encroach on individual rights. The blocking
mechanism created under the Act provides for
no review or appeal procedures, except in court,
and is permanent in nature. When CERT-IN has
issued orders to block specific Web sites, no
communication has been made to the public
beforehand. 22
Another basis for filtering was demonstrated
with the blocking of the site www.hinduunity.org
on April 28, 2004, reportedly ordered by the
Mumbai police on the grounds that it contained
inflammatory anti-Islamic material. 23 Police commissioners, who can exercise the powers of
executive magistrates in times of emergency, can
block Web sites containing material constituting
a nuisance or threat to public safety under
Section 144 of the Code of Criminal Procedure. 24
While major and small ISPs immediately complied with the blocking request, one of the
nation’s largests ISPs, Sify, refrained from blocking the Web site, arguing that only CERT-IN had
the authority to issue blocking orders. 25
288
Country Summaries