Is Uttar Pradesh Govt Acting as if It Is the Central Authority?

State’s Digital Media Policy Steps on Central Government’s Toes

Newsreel Asia Insight #318
September 4, 2024

The Uttar Pradesh government has reportedly passed a new digital media policy aimed at regulating content classified as “anti-national, indecent, or harmful” on social media platforms. The policy outlines severe penalties, including potential life imprisonment for violations, despite the fact that regulation of telecommunications and broadcasting is a central prerogative and a “policy” cannot introduce new penalties.

The Digital Media Policy 2024 establishes a framework in which the state information director can take action against any social media post or content deemed “objectionable” or “anti-national,” according to media reports. The policy also introduces a reward system, offering up to 800,000 rupees per month to content creators who provide positive coverage of the state government’s activities, based on their followers and viewership metrics.

Journalists are understandably concerned.

“… Section 7(2) of the said policy states that legal action by the Director Information of the Uttar Pradesh government will be initiated against content creators if any content is deemed to be ‘anti-national’, ‘anti-social’, ‘paints the government in bad light’, or is ‘created with mala fide intent’,” according to a statement issued by the Press Club of India, endorsed by the Indian Women’s Press Corps, Press Association, Digipub News India Foundation and the Software Freedom Law Centre, as reported by The Hindu.

“The wide and ambiguous ambit of this clause makes it draconian. It infringes on the right to freedom of speech and expression under Article 19(1)(a) of the Constitution that encompasses the practice of journalism, which often involves highlighting the failures of the government pertaining to public affairs or in matters of public interest,” the statement reads.

Apart from its apparent infringement on the right to freedom of speech and expression, the policy raises serious questions about its enforceability and constitutionality.

A key issue is that a “policy,” by its very nature, does not carry the legal force of a law enacted through legislative processes. It typically serves as a directive for government operations and cannot independently impose legal penalties like fines or imprisonment. Especially the provision for life imprisonment for policy violations is a penalty that requires legislative backing. Without this, the policy remains a set of guidelines without legal teeth.

According to principles of legality and the doctrine of “no penalty without a law” (nulla poena sine lege), which is a fundamental principle of criminal law and constitutional law, no one can be punished for an act that is not defined as a punishable offense in law and by proper legislative procedure.

Furthermore, content regulation, particularly in the digital and communication domain, predominantly falls under the Union List of the Indian Constitution, which means it is primarily the domain of the central government. The Union List comprises items that are of national importance and require uniformity of legislation across the entire country.

Specific entries in the Union List pertain to the regulation of communications and broadcasting. For example, Entry 31 of the Union List gives the central government exclusive power to legislate on posts and telegraphs, telephones, wireless, broadcasting and other forms of communication. This includes digital and internet communications.

Given that digital and internet communication falls under telecommunications and broadcasting, it is predominantly under the central government’s jurisdiction to regulate content in these domains. This includes the regulation of content deemed as “anti-national, indecent, or harmful” on digital platforms.

A state government may implement policies to manage or guide how digital content affects state administration, but any substantive legal measures, especially those imposing restrictions or penalties, need to align with central legislation. This includes adherence to established laws like the Information Technology (IT) Act, 2000, which governs digital activities and is managed by the central government. The IT Act doesn’t include provisions for life imprisonment.

While the state cabinet can endorse policies, such endorsements do not extend to creating new legal powers or penalties that go beyond the state’s jurisdiction. The implications of attempting to enforce criminal penalties through a mere policy without foundational legal statutes could lead to significant legal challenges and potential judicial setbacks.