What the outcry over Section 66A of the IT Act misses is the need for a mechanism to prevent arrests on flimsy interpretations of criminal law provisions

The reprehensible treatment meted out to Shaheen Dhada and Renu Srinivasan by the police in a response to their Facebook activity has brought into focus the conflict between the fundamental right to free speech and the ambiguously worded Section 66A of the Information Technology Act. However, what is underemphasised is that Shaheen and Renu would probably have undergone the torment even if there were no Section 66A on the statute books.

Their case is, in fact, symptomatic of a larger problem — namely, that the coercive machinery of criminal law is being set in motion on flimsy and tenuous statutory interpretations by the police. Addressing this larger systemic problem calls for a lot more than just striking down Section 66A as unconstitutional.

The Constitution of India protects the fundamental right to free speech by proscribing the State from enacting any statute or regulation which unreasonably restricts the right to free speech. Several provisions of the Indian Penal Code such as Section 124A (proscribing seditious speech), Section 292 (proscribing obscene speech), Section 295A (proscribing speech engendering religious hatred) have been restrictively interpreted by the Supreme Court to ensure that these sections do not act as unreasonable intrusions on the right to free speech.

For instance, Section 124A (proscribing seditious speech) was held to be constitutionally valid by the Supreme Court in the Kedar Nath case on the strict understanding that it only criminalised speech intended to, or having the tendency, to create disorder or disturbance of public peace by resort to violence. The Supreme Court couldn’t have been more unequivocal in insisting that Section 124A is not meant to criminalise mere criticism of the government, however strongly worded. Despite these clear guidelines, the police have perversely invoked Section 124A in cases where no offence of Sedition could be thought to be constituted on any reasonable interpretation of that provision. Aseem Trivedi’s case is the most recent illustration of such frivolous invocation of Section 124A. Similarly, other provisions (such as Sections 295A and 505) which criminalise speech have been perversely invoked by the police to muzzle what the Supreme Court has clearly recognised as a legitimate exercise of the right to free speech.

Deters individuals

The Constitutional structure in place to protect free speech presupposes that any action by the police is strictly in pursuance of the statute or regulation reasonably restricting free speech, as interpreted by the courts. However, cases such as Shaheen’s and Aseem Trivedi’s — which are in no way mere aberrations — seriously undermine the soundness of this presupposition. To be sure, the citizen is not bereft of remedy in such cases. The right to free speech in such cases is likely to be vindicated by the judiciary after the criminal law has been set into motion either at a trial or in a quashment proceeding. Furthermore, the victims in these cases could also, in principle, subsequently sue the police for wrongful prosecution. However, it is feared that this protection is too little and comes too late for two reasons: First, the very fact that individuals are called to the police station, and are subject to interrogation on flimsy and tenuous grounds amounts to harassment and subsequent remedies do not adequately mitigate or vindicate this harm. Second, such unjustified invocations of penal provisions have a “chilling effect” on free speech, that is to say, they severely deter individuals from exercising their constitutionally protected right to free speech for fear of frivolous prosecution and police harassment. The wronged citizen’s right to free speech may be eventually vindicated by a court but not before countless others are disincentivised from exercising theirs. The constitutional protection of free speech thus stands the risk of being eroded unless measures are put in place to insulate it. This necessitates two innovations.

Two innovations

First, it is time to recognise that setting the machinery of criminal law in motion (either by inquiry or interrogation) for a putative contravention of a constitutionally valid law on tenuous and flimsy grounds is in itself a violation of the fundamental right to free speech.

Second, it is imperative to introduce a safety valve at the threshold, before the criminal law can be set into motion, in matters of free speech regardless of the gravity of the offence. This safety valve could take the form of a requirement that any invocation of the criminal law machinery in response to any expression of ideas, is conditional upon the approval of a responsible judicial official. This can ensure that the criminal law machinery will not be used on frivolous or tenuous grounds. Had this safety valve been in place, it is very likely that Aseem Trivedi, Shaheen Dada and Renu Srinivasan would not have been arrested.

It could plausibly be argued that Section 66A, as it stands, is unduly restrictive of free speech. However, even if the Supreme Court reads down Section 66A so as render it free speech compliant, it wouldn’t in itself make India more free speech friendly unless the larger systemic problem highlighted is remedied. The judiciary may lay down the clearest guidelines but unless there is a mechanism for ensuring that the police adhere to them before setting the criminal law in motion it is feared that the right to free speech will continue to remain imperilled.

(Shivprasad Swaminathan is doctoral candidate in jurisprudence, University of Oxford, and assistant professor, Jindal Global Law School. Neha Tayshete is assistant professor, Jindal Global Law School.)

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