In another instance pointing to opaque content takedowns in India, The Caravan has been told to remove a piece it had published two weeks ago under Section 69A of the Information Technology Act and its rules. The article pertains to the alleged torture and deaths of villagers in Jammu and Kashmir at the hands of the Army.

But opacity surrounds the order, the reasons therein, and on whose complaint it was issued.

The Caravan said it will challenge the notice that was issued by the Union Ministry of Information and Broadcasting on Monday night over the report headlined “Screams from the Army Post”. “This is to inform readers we have received an order from the Ministry of Information & Broadcasting under Section 69A of the IT Act, directing us to take down this story in 24 hrs…” it tweeted. 

At the time this report was published, The Caravan’s report was still visible on its website.

The first notice and ‘absurd confidentiality’

Under Section 69A of the Information Technology Act, the government can block access to information that poses threat to sovereignty, security and integrity of India, spoils friendly relations with other countries or public order, among others.

The Caravan isn’t the first news portal to have received takedown orders. Last year, Kashmir Walla’s website and social media handles were blocked under the IT Act.

The Caravan first received a notice from the I&B ministry on February 9 and replied to it two days later. Unsatisfied with the reply, an inter-departmental committee, formed by the Ministry of Electronics and Information Technology with five members, called a Zoom meeting – which was attended by a representative from the magazine in the afternoon of February 11.

The same evening, the takedown notice was issued. 

Executive editor Hartosh Singh Bal refused to share the contents of the notice due to its “absurd confidentiality” clause.

“The IT ministry (Ministry of Electronics and Information Technology or Meity) has declared the notice ‘confidential’. This confidentiality is absurd… Such proceedings should be transparent. Why are we afraid to reveal the reason for which we need to take the article down? We are supposedly the ones who have to defend ourselves but they (government) are the ones who are concealing facts,” he told Newslaundry. 

Bal asserted that the article “meets every journalistic standard”.

The deep-dive, written by Jatinder Kaur Tur, detailed alleged torture by the Rashtriya Rifles in two districts of Rajouri and Poonch. “On 22 December, 25 men were picked up from several villages in Rajouri and Poonch districts, and taken to three different army posts, where they were severely tortured. Three of them died,” read a portion of the piece. The victims belonged to the Gujjar and Bakerwal communities whom the BJP is trying to woo, it indicated.

A day before, on December 21, four Army personnel were killed in an ambush by terrorists. On December 27, defence minister Rajnath Singh met the families of the three civilians who were killed.

The Wire has also hosted a portion of the report on its website.

The Caravan gave 48 hours to the Army to reply to its questionnaire.

“Everything is fact-based. Forty-eight hours were given to the army for the reply. If the army does not choose to reply, that’s their concern. We reached out to everyone who was affected and named in the story. Everything is factually researched. It is based on the conversation with the victims and everyone who was involved in the story. Every due care was taken,” said Bal.

According to the piece, Tur had reached out to “Kashmir’s director general of police and the SPs of Poonch and Rajouri” who did not respond to a detailed questionnaire. “Neither did the deputy commissioners of these two districts. The public relations officers of the army and ministry of defence did not respond to questions either. The online version of this story will be updated if they do,” it read.

It’s not clear who has filed a complaint against The Caravan. When asked if the army was the complainant, its spokesperson said: “Please speak with the I&B ministry.”

The spokesperson of the Ministry of Home Affairs did not reply to the question.

Newslaundry also sent a questionnaire to the I&B ministry and the IT ministry, asking them the reason for the notice. The copy will be updated if the two ministries reply.

Stay on IT Rules

Under the new 2021 IT Rules notified in October 2022, there are two rules that are of importance. 

The first is Rule 9(1) which mandates that a publisher adheres to the code of ethics. This code, explained in the appendix, says that a publisher should not publish articles banned under any law. It further reads that the publisher should exercise due caution if the content falls under any of the following categories: “content which affects the sovereignty and integrity of India; content which threatens, endangers or jeopardises the security of the State; content which is detrimental to India’s friendly relations with foreign countries; and content which is likely to incite violence or disturb the maintenance of public order”.  

Rule 9(3) mandates a “three-tier” structure to ensure adherence to the code of ethics. The first level is self-regulation, followed by “self-regulation by the self-regulating bodies of the publishers”. The third level is an oversight mechanism by the central government.

Rules 13 and 14 explain how this oversight mechanism works. An inter-departmental committee, led by Meity, would issue guidance and directions to adhere to the code of ethics. Rule 14 names seven ministries — related to information and broadcasting, defence, information technology, women and child welfare, home affairs — that can be part of this committee.

On the recommendation of the committee, the I&B ministry is likely to have issued the notice to The Caravan.

But there might be a catch. 

The Bombay and Madras high courts have stayed Rules 9(1) and 9(3) of the 2021 IT Rules. The Bombay High Court in 2021 found that these rules prima facie violated freedom of speech and expression.

At the Madras High Court, a division bench of Chief Justice Sanjib Banerjee and Justice Audikesavulu said the rules were ultra vires of Article 14 (equality before law) and Article 19 (right to freedom of speech) of the constitution.

There are at least 17 petitions filed in various high courts against the IT Rules. They have been clubbed together and transferred before the Supreme Court. “The transfer petition has not been listed by the Supreme Court,” said Prateek Waghre, executive director of Internet Freedom Foundation which advocates net neutrality, free expression, privacy and innovation.

Tanmay Singh, a lawyer specialising in regulation and laws governing the information technology sector, claimed the constitution and working of the inter-departmental committee are under stay since 2021 on the direction of the Madras and Bombay high courts.

Speaking at a conclave held by the Digital News Publishers Association in Delhi earlier this month, I&B Minister Anurag Thakur said self-regulation was not enough. “Self-regulation does not give a licence to the media to err – and to err intentionally. That would erode the media credibility. We may have left the pandemic behind us, but the debilitating infodemic seems here to stay. It is for the media to reflect and self-introspect on how to immunise itself against infodemic.”

The minister also attacked “some media houses” that suffer from an “anti-India bias”. “We could see that through their reporting. With this wrong sentiment, they come up with fabricated reports which have no scientific basis. They have created such a nexus that even when questioned by agencies for wrongdoings, they shout to the world that there is a threat to the media in India,” said the minister.

Since the Emergency, he said the BJP and its predecessor Jan Sangh have stood for press freedom.

Update at 4.50 pm on Feb 14: The Caravan’s report has been taken down. The Press Club of India on Wednesday issued a statement expressing concern and asking the government to restore the piece. “The actions of the MIB gravely infringe freedom of press, which has seen a serious slide in the past few years…The Caravan reported on an important story and the people of the country have the right to know…We urge all media organisations to take up this issue urgently,” it said.

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