Social Media and Free Speech

Once again the apex court of the land has ruled to safeguard the fundamental right of the citizen to free speech guaranteed by the Constitution. The Central government fought tooth-and-il to keep Section 66A of the Information Technology Act in the statute book. But the Supreme Court has now struck it down as ‘unconstitutiol’ in a landmark judgment, disposing off a bunch of PILs filed by 21 aggrieved petitioners. And what was this controversial law introduced by the UPA government in 2008, which the NDA government championed so strenuously in the me of  maintaining ‘continuity’? This law prohibited sending through a communication device — any message ‘grossly offensive’ or with ‘mecing’ character, or a message that the sender knows to be false but is sent for the purpose of ‘causing annoyance, inconvenience, danger, obstruction, insult, injury, crimil intimidation, enmity, hatred, or ill will.’ Offenders violating this law could be shut up in jail for three years and also fined. Both Houses of Parliament had passed this IT Amendment Act, 2008 swiftly, and it soon became a favorite of the Central and various state governments, irrespective of party ideology. But the very abuse of this law by the Executive, its sweeping and punitive character, filly paved the way for its welcome demise.    

The controversy surrounding Sec 66A began to build up around several incidents that made concerned citizens sit up and take notice. When entire Mumbai came to a standstill during Bal Thackeray’s funeral procession, a girl wrote a Facebook post questioning the shutdown and her friend ‘liked’ it. The police swooped down and took both into custody, while irate Shiv Se workers vandalised the clinic of the girl’s uncle. A Jadavpur University professor was hounded by Kolkata police for forwarding a cartoon of Chief Minister Mamata Banerjee. A Goa-based professiol and a Kerala youth were arrested and booked under Sec 66A for abusive Facebook comments and photos against Prime Minister rendra Modi. A Puducherry businessman was charged for tweeting about the assets of the then Union minister P Chidambaram’s son. The law enforcement machinery went overboard on these and many other cases, trying to enforce a law that was ‘poorly drafted and capable of being misused’ in P Chidambaram’s own words now. Governments in their defense have cited social networking sites carrying abusive remarks against Hindu gods, Muslim prophets and Mahatma Gandhi, with mischievous potential to trigger vigilante action by groups and public disorder. The SMS campaign in some southern states which sent people from the Northeast back home in panic, as well as the use of Facebook in Dimapur recently to whip up anti-Bangladeshi frenzy — are also relevant in this context.

Hearing the matter, the Supreme Court pointed out that terms like ‘grossly offensive’, ‘mecing character’, ‘annoying’ and ‘inconvenient’ in Sec 66A are vague and prone to misuse. The Central government argued that the provision cannot be quashed merely because it could be misused; it even offered to make sure the law is ‘administered well’. But the apex court was not convinced, filly ruling that this provision adversely affected people’s right to know and did not make any distinction between advocacy and discussion on one hand and incitement on the other. The Supreme Court thus refused to accept Sec 66A as a ‘reasoble restriction’ on the right to freedom of speech and expression, guaranteed under Art 19(1)(a) of the Constitution. Through Art 19(2), the Constitution already carries reasoble restrictions on the right to free speech if it goes against the interests of the country’s sovereignty and integrity, its security, its friendly relations with other countries, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. So there is sufficient provision under the Constitution to prevent persons misusing social media. But it is clear that the power and reach of social media has rattled the Indian establishment. The simplistic attempts so far by lawmakers and bureaucrats to control it only go to show that they have not properly understood and gauged its character. However, the battle is far from over, with the Central government now promising to study the apex court’s ruling and come up with a new law.