Even its limited powers under the IT Rules are not legally enforceable at present.

Earlier this week, the ministry of information and broadcasting issued orders to block approximately 45 videos from 10 channels on YouTube.

This practice is not new. Last month, the ministry blocked eight YouTube channels. In April, it blocked 16 and then 22 YouTube channels in two separate blocking actions. In July, I&B minister Anurag Thakur told the Parliament that his ministry has issued orders to block 78 YouTube channels and over 500 unique URLs since 2021.

But, as things stand right now, the I&B ministry does not actually have the power to block YouTube channels, or any other content on the internet, at all.

The ministry’s exercise of a non-existent power is a worrying trend.

According to its press release, the offending videos were blocked and channels banned under the 2021 IT Rules, which were jointly issued by the I&B ministry and the ministry of electronics and information technology. To be clear, the electronics and IT ministry already has the power to block online content. Its power originates under section 69A of the Information Technology Act, 2000 and the Blocking Rules, 2009 framed under it.

The I&B ministry, on the other hand, has the power to regulate print and broadcast news media. The IT Rules, 2021 under part III sought to provide the power to the I&B ministry to also regulate online content by digital news media. But this power was suspended by successive orders of different high courts.

Let’s break this down.

The 2021 IT Rules enabled the regulation of digital news media in two ways: First, by constituting a three-tier mechanism for regulation which places at the top level an inter-ministerial committee headed by the I&B ministry. Second, by prescribing a code of ethics that must be followed by digital news publishers. Violation of this code of ethics by digital news publishers could lead to a range of consequences under the 2021 IT Rules, including censorship and blocking by the inter-ministerial committee.

It is worth noting that the I&B ministry cannot exercise the power of censorship and blocking by itself, but only as a member of the inter-ministerial committee.

Pertinently, even the limited powers vested in the I&B ministry by the 2021 IT Rules to regulate digital news content are not legally enforceable at present. These powers have been expressly stayed by the orders of the Bombay High Court and the Madras High Court. This essentially means the I&B ministry does not have any power to block content over the internet.

The I&B ministry could have well written to its electronics and IT ministry requesting it to exercise its existing powers to block online content. Instead, the I&B ministry illegally exercised a non-existent power itself.

This is not just a technical difference. It is imperative for the preservation of the rule of law that only the body that is duly authorised and empowered by statute exercises such power when required.

The union of India has filed transfer petitions before the Supreme Court to combine all the various petitions challenging the 2021 IT Rules and have them heard together. While this transfer has not yet been successful, the Supreme Court has ordered a stay on the high court proceedings until the transfer petitions are decided. Crucially, the Supreme Court declined to disturb any interim orders issued by the high courts in these challenges.

This means that the stay orders on the powers of the I&B ministry continue. And for as long as the stay orders continue, every time the I&B ministry blocks online content, it does so illegally and in violation of high court orders.

In a functional democracy, it is essential that a public authority is assigned clearly defined powers by statute, and that a public authority acts within the powers assigned to it. When a public authority exercises powers that have not been assigned to it, it undermines the democratic setup.

This is particularly crucial in instances where fundamental rights are involved such as in the present case, where the ministry has restricted the fundamental right of speech and expression of at least 78 YouTube channels. The Supreme Court in Anuradha Bhasin has recognised that the fundamental right of speech and expression, as well as the fundamental right to carry out trade, business or profession, is protected over the medium of the internet. Due process is a necessary component of such a right, and the legitimate exercise of properly delegated power is an inalienable right of due process.

By issuing orders to block YouTube videos, the I&B Ministry undermines India’s constitutional democratic setup, because a function of the rule of law is to ensure non-arbitrary exercise of state power. If the I&B ministry is allowed to exercise the Electronics and IT ministry’s powers, then the latter might start exercising the finance ministry’s functions. The finance ministry may start exercising the powers of a chief minister, and the chief ministers may start exercising the powers of a public works department. A public works department may exercise the UIDAI’s powers, and the UIDAI may exercise the powers of the Central Board of Film Certification.

This is not just the sign of a crumbling democracy, but a sign of a desperate one.