Tuesday’s verdict is a victory for a loose coalition of young lawyers, Internet activists and researchers who filed separate petitions but helped each other with backroom work and creating public opinion over the last two years.
Among the lawyers on the case is Mishi Choudhary, a technology lawyer and founding director of the non-profit, Software Freedom Law Centre, that works on online civil liberties. Ms. Choudhary was the lawyer for Mouthshut.com, a reviews-based website which would frequently get requests to take down negative reviews against builders who had defaulted, educational institutions giving fake degrees, banks and the police. Mouthshut.com’s CEO Faisal Farooqui is himself in his late 30s.
“The Supreme Court has ruled that the Section goes beyond reasonable restrictions as imposed by Article 19(2) and is vague and finds no part of it severable and has struck it down in its entirety. Liberty of speech and expression are cardinal concepts of paramount significance in a democracy,” Ms. Choudhary said.
On the the People’s Union for Civil Liberties with lawyer Sanjay Parikh were Apar Gupta (30) and Karuna Nundy (38). “I remember reading the Section when it came out and thinking it was ludicrous,” Ms. Nundy recalled, noting the “over-breadth” of the provision, something the Supreme Court agreed with. “I was drawn into the case having commented on the Information Technology Act from its early days. A journalist friend also used to write articles on censorship on the Internet and we approached the PUCL in early 2012 to file a writ petition to challenge Section 66A,” Mr. Gupta said.
“In this case the Supreme Court has had substantial occasion to comment on penal provisions and censorship online. As such this ruling is foundational and will define future interactions between users on the Internet in India,” Mr. Gupta said.
Among the groups supporting the lawyers were National Law University, Delhi, and the Centre for Internet and Society. “[The judgment] makes it very clear that the judiciary will not tolerate the restriction of speech through any vague, over-broad law that is inconsistent with the Constitution. This is wonderful because it means that the more pernicious parts of the Indian Penal Code [which also apply online] can also be challenged on this basis,” Chinmayi Arun, Research Director of the Centre for Communication Governance at NLU, Delhi, explained.
However, the lawyers warn that the court’s reading down of rules governing the takedown of content may not be sufficient to rein in the state. “The reading down to exclude third party censorship is a wonderful move since it will cut down the vast amounts of horizontal censorship that has been taking place, thanks to the intermediaries’ guidelines. It appears, however, that the court has placed more faith in the government’s content-blocking and take down process than is wise,” Ms. Arun said. “The critical flaw with this system is its complete lack of transparency. Neither the government nor the intermediary is required to notify users that their content has been removed or blocked,” she added.
“There need to be better checks and balances. This is a longer and much more nuanced conversation which needs to be encouraged by the legislature. The court has only prescribed constitutional thresholds; public policy and preventing abuse is the proper role of the legislature and the executive. I am hopeful of such a conversation in the near future,” Mr. Gupta agreed.
