While describing Sec.124A of the IPC (sedition) as the “prince among the political sections designed to suppress the liberty of the citizen”, Mahatma Gandhi offered us an ironic way of thinking about liberty-curbing laws through the metaphor of illegal tyrants. On that count, the Supreme Court’s judgment in the Shreya Singhal versus Union of India case , >striking down Sec.66A of the Information Technology Act can be seen as a welcome end to a short-lived but terribly tyrannical reign of a petty despot.
Over the past few years, Sec.66A has been used in a range of infamous instances, ranging from the Shaheen Dhada case (a young woman was arrested for an innocuous Facebook post) to the most recent incident of the arrest of a Class XI student for posting comments on his Facebook page that he attributed to Azam Khan, a Samajwadi Party Minister in Uttar Pradesh. As is perhaps appropriate for a law that struck at the very heart of Web 2.0 and social media, the challenge to its constitutional validity was brought by a 21-year-old law student, with other individuals and organisations subsequently joining the case. The proceedings before Justices Rohinton Nariman and G. Chelameswar were keenly followed and reported by many people on social media, and it is safe to say that the judgment was one of the most keenly anticipated decisions in recent times. The Supreme Court has not failed us in its role as the constitutional guardian against capricious laws that threaten our fundamental rights.
Three forms of speech In a carefully reasoned decision, the court has struck down Sec. 66A in its entirety on grounds of vagueness, overreach, and the chilling effects it has on online speech. It also reads down Sec.79 (intermediary liability), holding that intermediaries are liable to take down content only upon receipt of actual knowledge from a court order or on being notified by the appropriate government. It, however, upholds Sec. 69A and the rules under the IT Act (blocking of websites) on the grounds that there are internal safeguards and reasonable procedures available within Sec.69A.
The court begins by distinguishing between three forms of speech: discussion, advocacy and incitement, and holds that mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. The court finds that not only does Sec. 66A interfere with the right of the public to receive and disseminate information, the provision fails to distinguish between discussion, advocacy and incitement. It then goes on to discuss what standards constitute ‘reasonable restriction’. In the current case, the government had argued that we need to apply a more relaxed standard of reasonableness of restriction, with regard being kept for the fact that the medium of speech being the Internet, it differs from other media on several grounds. While the courts agree that the Internet may be treated separately from other communication media and that there could be separate laws that only deal with online speech, these laws still have to pass the test of reasonableness in Art.19(2).
Citing an important and often ignored free speech judgment, the Ram Manohar Lohia case (1960), the court holds that any restriction that has to be made in the interests of public order must have a reasonable relation to the object to be achieved, that is, public order. The relation should be one which has a proximate connection or nexus with public order, and not a far-fetched, hypothetical or remote relation. It then examines each of the grounds under Art.19(2) to find that 66A failed to establish a proximate connection to public order, incitement, defamation, and so on.
Finally, the court strikes down 66A on the grounds of ‘vagueness and over breadth’. According to the court, it is a vague law that impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. This effectively summarises how Sec.66A has been misused in recent years. It also finds that 66A has a chilling effect on online speech because it overreaches and is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total”. [Read: >The ‘reasonable’ man vs the ‘hypersensitive’ man ]
The reason that the court finds it to be vague and overreaching is the absence of any distinction between different forms of speech, and in seeking to prevent speech that it thinks would cause ‘annoyance’, or is ‘grossly offensive’, it also takes within its sweep protected speech. The court implicitly acknowledges that the right to critique and the right to dissent are a substantive part of the freedom of speech and expression, and merely an individual’s or even a group’s annoyance with the speech of another cannot be the basis for curbing legitimate speech. The court is cognisant of a creeping intolerance within the political climate, and illustrates this in the following manner “A certain section of a particular community may be grossly offended or annoyed by communications over the Internet by “liberal views” — such as the emancipation of women or the abolition of the caste system or whether certain members of a non-proselytising religion should be allowed to bring persons within their fold who are otherwise outside the fold”.
Free speech in the 21st century It is important to note that this is the first judgment in decades in which the Supreme Court has struck down a legal provision for violating freedom of speech, and in doing so, it simultaneously builds upon a rich body of free speech cases in India and paves the way for a jurisprudence of free speech in the 21st century, the era of the Internet and social media. It explicitly acknowledges that the Internet has radically democratised communication that allows for people to participate in the ‘marketplace of ideas’ and this ecology of communication has to be safeguarded from any inhibition by arbitrary laws. One wishes the court had paid closer attention to the arbitrary manner that the blocking rules work, but that is a gentle disagreement in light of its significant achievement on the substantive questions. It should also be noted that the judgment is the outcome of a new kind of political activism around free speech, which saw activists, lawyers, bloggers and social media coming together in a markedly different way from the segmented modes in which free speech battles have taken place in the past.
If this judgment heralds the coming into being of Free Speech Ver.2.0, we can’t wait for future updates. While we celebrate the judgment, it is important to remember that cases under Sec.66A have rarely ever been filed in isolation, and they are often accompanied by charges under sedition and hate speech laws (Sec.153A and 295A of the IPC). Further, even when the Supreme Court lays down good principles in its interpretation of substantive laws, these constitutional protections are undone by the flimsy criminal justice systems, which allow for mala fide complaints to be filed and acted upon in a manner that makes the procedure and the process the real punishment. If we are to truly create an ecology in which people can exercise speech fearlessly, it is crucial that we acknowledge that we are living under what Gopalkrishna Gandhi describes as an ‘unpromulgated state of fear’, and this judgment is a significant if only first step towards a braver, freer and more tolerant democracy.
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(Lawrence Liang is a lawyer and researcher with the Alternative Law Forum.)