Mixed signals emanating from the Supreme Court have done little to strengthen efforts to protect free speech online. Last week, the court rightly hauled up the Uttar Pradesh government over its arrest of scholar and writer Kanwal Bharti for his Facebook post criticising the suspension of IAS officer Durga Shakti Nagpal. The same day, however, the SC refused to stay the implementation of the Information Technology (Intermediaries Guidelines) Rules, 2011, which require websites to take down objectionable material posted by third-party users within 36 hours of being notified of the need to do so. Although the two incidents which drew the Court’s attention are separate, they point to a larger, systemic problem: the ultimate arbiter of what constitutes offensive online content is the executive. In practice, that means touchy politicians and trigger-happy policemen. Given that the imposition of penal laws falls within the domain of States, it was ill-advised for the Supreme Court to have left the IT Act’s implementation to them without framing clear guidelines. States have seized on this legal vacuum to use the Indian Penal Code and the IT Act to clamp down on dissent.

Kanwal Bharti’s case highlights this problem. The policemen who arrested him were acting on a criminal complaint filed by a close aide of Samajwadi Party (SP) leader and local MLA Azam Khan. Thanks to a simple Facebook post, Mr. Bharti was charged under Sections 153 and 295A of the IPC — the latter, like Section 66A of the IT Act, is a cognizable offence that requires no warrant — for “wanton provocation with intent to cause riots” and insulting religious sentiments. As if these ludicrous charges were not enough, the SP has egged on Muslim clerics in the area to demand the writer be booked under the National Security Act. The Supreme Court’s intervention comes not a moment too soon — but the judiciary needs to realise that Mr. Bharti’s harassment was made possible thanks to the discretion governments exercise in regulating cyberspace. That the court is inclined to view the IT intermediary rules favourably does not bode well for social media sites, on whom the United Progressive Alliance government has launched an assault for their hosting of politically sensitive content. The unfortunate fact remains that the implementation of penal provisions has not been tweaked to reflect the constitutional rights of “netizens” in India. The Supreme Court has a chance to set this record straight: in its verdict on S. 66A, expected later this year, it should strike down the provision while setting a higher bar for invoking penal provisions in the IPC and other statutes against internet content.

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