Editorials/Opinions Analysis For UPSC 28 March 2025

Content:

1. Back door censor
2. Women unbound
3. The judiciary’s ‘between a rock and hard place’ moment

 Back Door Censor

Background and Context

The Union government’s SAHYOG portal has emerged as a contentious mechanism for online content regulation, with social media platform X (formerly Twitter) challenging its legality in the Delhi High Court. The dispute centers around the potential for misuse of the portal, which aims to coordinate takedown requests between law enforcement agencies, social media platforms, and telecom service providers.

Relevance : GS 2(Governance )

Practice Question: Critically analyze the implications of the SAHYOG portal for online content regulation in India. Does it amount to ‘backdoor censorship’? Discuss in light of constitutional and legal provisions. (250 words)

The legal backdrop of this issue involves two key provisions of the Information Technology (IT) Act, 2000:

1. Section 79: Grants intermediaries (like social media platforms) a “safe harbour” from liability for third-party content unless they fail to act upon government takedown requests.

• Section 69A: Allows the government to block content only on specific grounds (e.g., national security, public order) while ensuring procedural safeguards, such as oversight by a review committee and written justification for blocking orders.

X argues that SAHYOG bypasses the due process under Section 69A, effectively creating a backdoor censorship mechanism by allowing multiple government agencies, including local police, to initiate content takedowns without independent review or justification.

Legal and Constitutional Concerns

Bypassing the Safeguards of Section 69A

• Section 69A lays out strict procedural requirements before content blocking, including a review process by a government committee and a written order.
• The Supreme Court, in Shreya Singhal vs Union of India (2015), upheld Section 69A’s constitutional validity precisely because of these safeguards.
• SAHYOG appears to sidestep these protections, granting multiple agencies unchecked takedown powers.

Expansion of Takedown Authority Without Legislative Approval

• Unlike Section 69A, which limits blocking powers to a designated officer and a review committee, SAHYOG could allow Ministries, state governments, and even local police to request takedowns.
• This broad delegation of power raises concerns of arbitrary censorship and lack of accountability.

Ultra Vires (Beyond Legal Authority) Concerns

• Section 79(3)(b) requires an intermediary to remove content upon receiving “actual knowledge” from a government agency.
• However, the government’s October 2023 memorandum (on which SAHYOG is based) expands blocking powers beyond the IT Act’s provisions, potentially making SAHYOG ultra vires.
• The lack of a transparent and accountable appeal mechanism contradicts the principles upheld in Shreya Singhal.

Potential Chilling Effect on Free Speech

• The Supreme Court, in multiple cases (e.g., Anuradha Bhasin vs Union of India, 2020), has emphasized proportionality and necessity in content restrictions.
• If SAHYOG enables instant takedowns without review, it could create self-censorship among platforms and users, fearing arbitrary content removal.

Broader Implications and Linkages

Comparison with Global Practices

• The U.S. (Section 230 of the Communications Decency Act) grants broad immunity to intermediaries but does not require them to comply with government takedown orders.
  • The EU’s Digital Services Act (DSA) mandates transparency in content moderation and provides an appeal mechanism.
  • SAHYOG, in contrast, centralizes control with the government without transparent oversight, making it prone to misuse.

Precedents of Content Regulation in India

• India’s Intermediary Guidelines and Digital Media Ethics Code (2021) already mandate grievance redressal mechanisms for content moderation.
  • The Karnataka and Delhi High Courts’ pending cases on SAHYOG will set a crucial precedent on whether the government can unilaterally bypass statutory safeguards.

Policy and Legislative Gaps

• India lacks a clearlegislativeframework that balances national security and free speech in online content moderation.
  • The ongoing Digital India Act (DIA) proposal could address this issue, but SAHYOG’s opaque implementation raises concerns about excessive executive control.

Conclusion and Way Forward

• The Ministry of Home Affairs (MHA) must publicly disclose SAHYOG’s operational framework, ensuring it does not violate constitutional safeguards.
• The Delhi and Karnataka High Courts must determine whether SAHYOG is legally permissible under existing IT laws.
• The government should consider parliamentary oversight or a judicial review mechanism before broadening takedown powers.

Women Unbound

Current Situation & Recent Incidents

• Despite stringent laws, women continue to feel unsafe in public spaces, especially in public transport.
• Alarming incidents in early 2025 highlight the vulnerability of women:
  • A 23-year-old woman sustained severe injuries after jumping off a train to escape an assaulter.
  • A pregnant woman was allegedly pushed out of a train following an attempted rape, leading to a miscarriage.
  • Harassment remains rampant in unreserved train compartments and government buses.

Relevance : GS 1(Society) ,GS 2(Social Issues)

Practice question :Despite legal protections, women in India continue to face safety concerns in public spaces and transport. Analyze the structural and societal factors contributing to this issue and suggest comprehensive measures to ensure women’s mobility and security. (250 words)

Structural Issues & Societal Perspective

• Why Loiter? by Shilpa Phadke, Sameera Khan, and Shilpa Ranade argues that society’s approach to women’s safety often confines them instead of ensuring secure public spaces.
• Women must constantly assess their surroundings, avoiding travel after dark or before sunrise due to safety concerns.

Legal and Judicial Developments

• Delhi High Court’s Stand (2025):
  • Upheld the conviction of a man who sexually harassed a woman on a public bus in 2015.
  • Recognized harassment in public spaces as a “deeply concerning reality.”
  • Stressed that court rulings serve as critical signals to society regarding gender safety.

• Supreme Court of India’s Intervention:
  • Overturned an Allahabad High Court ruling that stated inappropriate touching of a minor did not amount to attempted rape.
  • Called such interpretations of the law “totally insensitive and inhuman.”

Necessary Reforms & Action Points

• Strengthening Law Enforcement & Administration:
  • Ensure well-lit streets, functional CCTV surveillance, and rapid response teams.
  • Train police personnel to handle harassment cases sensitively and efficiently.
  • Address vacant positions in law enforcement to enhance safety infrastructure.

• Public Awareness & Societal Change:
  • Encourage bystander intervention and gender-sensitization programs.
  • Shift the discourse from victim-blaming to accountability of offenders.

• Ensuring Women’s Freedom & Mobility:
  • Reinforce the fundamental right of women to access public spaces without fear.
  • Recognize that women’s empowerment is incomplete without physical autonomy in public life.

Broader Context & Global Trends

• Reports highlight rising violence and harassment against women in various sectors, including politics and workplaces.
• Women’s safety remains a significant concern, as seen in global movements advocating for gender-sensitive urban planning.

The judiciary’s ‘between a rock and hard place’ moment

Background: The Justice Yashwant Varma Case

• Incident Details: A fire in the outhouse of Justice Varma’s official bungalow in Delhi led to the discovery of sacks containing partially burnt ₹500 notes.
• Judicial Response:
  • The Delhi Police chief reported the incident to the Chief Justice of the Delhi High Court, which was then escalated to the Chief Justice of India (CJI).
  • The Supreme Court Collegium decided to repatriate Justice Varma to the Allahabad High Court.
  • An in-house inquiry committee was constituted, comprising three senior judges.
  • Call records of Justice Varma and his staff for six months were sought.
  • The CJI took an unprecedented step by making the findings public.
  • The Delhi High Court was advised not to assign any judicial work to Justice Varma during the inquiry.

Relevance : GS 2(Judiciary )

Practice Question :“The judiciary finds itself at a crossroads, balancing the need for transparency with the imperative of judicial independence. In light of the Justice Yashwant Varma case, critically analyze the challenges in judicial accountability and the implications of government efforts to revive the NJAC.” (250 words)

Broader Implications of the Case

• Judicial Transparency vs. Judicial Independence:
  • The Supreme Court’s decision to make information public aligns with the need for transparency in judicial affairs.
  • However, the case has also exposed vulnerabilities within the judiciary, making it susceptible to political intervention.

• Government’s Strategic Opportunity:
  • The government has seized this opportunity to revive the debate on judicial appointments, pushing for the reinstatement of the National Judicial Appointments Commission (NJAC).
  • The Vice President has initiated discussions with political leaders to bring back the NJAC, which was struck down by the Supreme Court in 2015 as violating the basic structure of the Constitution.

The NJAC Debate: Revisiting Judicial Appointments

• What was NJAC?
  • Established via the 99th Constitutional Amendment (2014).
  • Composed of:
    • CJI + 2 senior Supreme Court judges
    • Union Law Minister
    • Two eminent persons nominated by a panel consisting of the PM, CJI, and Leader of Opposition.
  • Secretariat controlled by the Law Ministry, giving the executive substantial influence over appointments.

• Why Was NJAC Struck Down?
  • Violation of Judicial Independence: The Supreme Court (2015) held that allowing executive interference in judicial appointments would compromise judicial autonomy, which is part of the basic structure doctrine.
  • Potential for Political Manipulation: By placing the NJAC secretariat under the Law Ministry, the executive could control the selection process.

• Government’s Counter-Argument
  • The Collegium system lacks transparency and accountability.
  • Allegations of nepotism and favoritism in judicial appointments persist.

Government’s Strategy on Judicial Appointments

• Delays in Appointment Process:
  • The government has withheld appointments of judges recommended by the Collegium, in some cases for years.
  • Tactic of selective approval: Pro-government judges are quickly appointed, while independent-minded ones face delays.

• Pressuring the Collegium:
  • The Collegium has often compromised by appointing certain judges favored by the government to ensure the appointment of others.
  • This has led to the erosion of judicial independence over time.

The Larger Issue: Corruption in the Judiciary

• Lack of an Effective Accountability Mechanism
  • The only constitutional mechanism to remove a judge is impeachment (Article 124(4) for SC, Article 217 for HC), which is impractical:
    • Requires 100 MPs to sign a motion.
    • Political process in Parliament leads to stalemates.
    • No judge in India’s history has been successfully impeached.

• Proposed Solutions
  • Judicial Appointments Commission (Independent Model): A full-time body consisting of retired judges and independent experts, rather than government-nominated members.
  • Judicial Complaints Commission:
    • A five-member independent body empowered to investigate complaints against judges.
    • Authority to take disciplinary action without requiring Parliamentary approval.
    • Final decisions subject only to limited judicial review.

Linkages to Constitutional and Governance Issues

• Basic Structure Doctrine:
  • Judicial independence is a fundamental part of the Constitution’s basic structure, as established in Keshavananda Bharati (1973).
  • Any attempt to bring NJAC back must pass this constitutional test.

• Federalism & Separation of Powers:
  • The judiciary acts as a check on executive overreach.
  • Government control over judicial appointments would tilt the balance of power in favor of the executive.

• Judicial Delays & Pendency:
  • The crisis in judicial appointments has worsened case backlogs.
  • As of 2024, over 60,000 cases are pending in the Supreme Court, and 4 crore+ in lower courts.
  • A flawed appointment process further exacerbates the issue.

Conclusion: The Road Ahead

• Balancing Reform with Independence:
  • A transparent and merit-based judicial appointment process is needed.
  • Executive control over appointments, however, poses a grave risk to democracy.

• Need for Institutional Reforms:
  • An Independent Judicial Appointments Commission, insulated from political influence.
  • A Judicial Complaints Commission to investigate corruption allegations.

• Public & Political Resistance:
  • Civil society and the Opposition must remain vigilant to prevent executive overreach.
  • Judicial reforms must be led by the judiciary itself, rather than imposed by the government.