Shreya Singhal v. Union of India is being hailed as a landmark judgment of the Supreme Court, heralding a victory of free speech in India. A lot has been written on the judgment, examining its arguments and implications. In this article, I shall focus on three broad strands, rather themes, of the judgment that have not received the attention that they deserve. First, I briefly examine the principle of ‘marketplace of ideas’ that forms the basis of Justice Rohinton F. Nariman free speech jurisprudence. Second, I discuss the frustrating encounter of law with the inherent excesses of the Internet. This encounter emerges as a subtext in parts of the judgment pertaining to Article 14 of the Constitution. It also brings forth the anxieties of the government in regulating the Internet. And third, I deal with the unresolved concerns in the government’s blocking of websites under Section 69A of the Information Technology Act, 2000. These distinct themes emerge from the Shreya Singhal judgment, a fine fabric interwoven with several complex ideas.
Principles: Marketplace of ideas
In evaluating the extent to which American judgments on free speech are relevant to India, Justice Nariman concludes, based on precedents, that although they only have a persuasive value, we can still rely on them in order to understand the basic principles of free speech and the need for such freedoms in a democratic polity. After establishing a persuasive case for the legitimacy of this principle-based reliance on American courts, he discusses Justice Oliver Wendell Holmes’s notion of “marketplace of ideas” as expressed in his dissent in Abrams v. United States (1919). In effect, Justice Nariman’s claim is that the Internet is a dominant platform for the “marketplace of ideas” and the role of free speech laws is to regulate the efficiency of this market. But what exactly is this principle? The judicial history of the concept takes us back to Justice Holmes, who in turn derives his justification for the principle from John Stuart Mill’s defence of free speech in On Liberty (incidentally, Justice Holmes mentions in a letter to Harold Laski that he had been re-reading On Liberty in 1919). The argument is basically that in the marketplace of ideas, good ideas (truth) will displace bad ideas. Wrong opinions will yield to more rational and factual ones. J.S. Mill therefore suggests an absolute freedom of speech, where even hate speech ought not to be banned because such a speech will be tested by the standards of rational arguments and will eventually be refuted. Hence, Justice Nariman’s invocation of the marketplace of ideas, following Holmes and Mill, is a claim that free speech is necessary in a liberal democracy because it will eventually ensure a public discourse driven by truth, honesty and rationality. The principle may have several implication on jurisprudence, such as, that truth will eventually prevail in the marketplace of ideas; or that the best remedy for bad speech is more speech; or that content-based judgment of speech is not a good idea etc.
Although attractive, the idea is too optimistic. First, there is little evidence to show that good, just and rational arguments always triumph over bad and unjust arguments. Psychological research shows that we are quicker to agree with views that we already hold or prefer, rather than change it on purely rational grounds. Second, the principle is too teleological and does not consider the play of power in liberal politics (the marketplace is after all an economic-model based on rational, self-interested subjects). So, sexist, casteist, class ideologies will dominate a society, not on the strength of its truth but on the strength of its hegemony over that society. So the economic analogy may comprehend efficiency in the marketplace but not social-justice. And third, we need to be able to make an argument to ‘tolerate’ banal, silly and vulgar speech as well. Not because they will eventually lead to truth, but because we want to live in a society where talking banal, vulgar and senseless is needed in itself, instead of always living in an obsessive search for truth. The AIB roast controversy is an instance for the need to protect even bad humour, not for the sake of truth, but for its own sake. So the principle of marketplace of ideas, with its long and intricate intellectual history, needs to be closely interrogated for its implications on India’s free speech jurisprudence.
Anxieties: Encountering the Internet
The frustration of law in encountering the Internet is a subtext that emerges in the arguments around “intelligible differentia” (Article 14) in the judgment. The crux of the government’s defence of Section 66A was that (a) the Internet is in fact a very different medium of communication that has to be treated unlike television, newspapers etc; (b) On establishing this difference, they went on to argue the need for separate and specially-crafted laws, like Section 66A, to regulate the Internet specifically; (c) Thus, the need to reinterpret “reasonable restrictions” in Article 19(2) was to account for these special circumstances introduced by this new governance problem called the “Internet”. The Supreme Court disagreed with the Article 19(2) argument but stated that “we make it clear that there is an intelligible differentia between speech on the Internet and other mediums of communication…” Para 27 of the judgment quotes the Additional Solicitor General talking about the radical alterity of the Internet as compared to other media of communication. For instance, he articulates the borderless reach of Internet, its anonymity, the difficulty of censoring it, sharing content by just a click, the possibilities of morphing images, invasion of privacy, spreading abusive content to “trillions of people” etc. It is at this juncture that the subtext I refer to emerges. Which is, that we need to understand the deep differences in the essence of common law and the nature of the Internet, to really make sense of this encounter. Law’s attempt to control and police meanings, the dissemination and representation of digital content, is bound to fail. The digital age has produced the conditions for an endless reproducibility, and the internet allows for an instant proliferation of content. Every reproduction of the image is within a new context and in every context the content re-emerges as a site of contestation against the sovereignty of law. As Costas Douzinas, Peter Goodrich and others argue, modern positivist law constitutes itself by keeping its logic closed, internal, pure and free from the excessive interpretation (which is otherwise inherent in digital and online content). And so, information mediated by the Internet ultimately shatters the image, logic and sovereignty of law. The polysemy of digital content threatens law’s hegemonic control over singularity in meaning.
Concerns: Website Blocking Rules
A crucial concern in the judgment is the court’s take on the government’s blocking of websites. Although the court invokes over-breath and vagueness to nullify Section 66A, it fails to invoke the principle of transparency to judge Section 69A. This was rightly pointed out in the Editorial “Victory for Free Speech” in The Hindu. Section 69A(1) states that “for reasons to be recorded in writing”, the government can direct the concerned agency to block a certain website content. But Rule 16 of the blocking rules of 2009 states that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.” So, it is only the intermediary, like Google and Facebook (and the content-creator at times) who will be aware of these blocks. But as the judges in Shreya Singhal note, in the marketplace of ideas, the recipients of information have as much of a right to know as the speakers and creators of the content have a right to speak. But Section 69A and the rules formulated therein, deny the recipients of information any knowledge of these blocks and hence are prevented from appealing such decisions as well. It is further unclear whether the confidentiality clause of Rule 16 will muster the test of exceptions to Right to Information (Section 8(1)(a), Right to Information Act, 2005).
To briefly sum up, although the judges invoke over-breath and vagueness to strike down Section 66A, they unfortunately ignore the need for transparency, the lack of which pervades the application of Section 69A in India. Regardless, what is noteworthy of the judgment is that the judges lay a philosophical basis for their reasoning. However, as noted above, this needs some further interrogation and fine tuning. And finally, the judgment needs to be read in a much larger context of a ‘struggle’- where the law struggles to keep up with the radicalism of the internet, with the former being unable to grasp what the latter entity exactly is.