(Siddharth Varadarajan is a Senior Fellow at the Centre for Public Affairs and Critical Theory, Shiv Nadar University)
What do Narendra Modi and Azam Khan, Karti Chidambaram and Mamata Banerjee have in common? The law will no longer allow someone to be arrested for writing an online comment that offends or annoys them. In a landmark ruling that is a shot in the arm for freedom of expression in India, the Supreme Court on Tuesday struck down as unconstitutional a key provision of the Information Technology Act that criminalises speech on the internet that is otherwise perfectly legal were it to be made on television, in a newspaper, or at a public gathering.
A bench of Justices Chelameshwar and Rohinton Nariman found the provisions of Section 66A vague and confusing and so liable to abuse that they ordered its deletion.
The offending section prescribed a punishment of three years for any person who uses a "computer resource" or "communication device" to send
(a) "any information that is grossly offensive or has menacing character",
(b) "any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will..."
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages."
Thanks to these loose legal provisions, Devu Chodankar was booked by the police in Goa last year for a Facebook post in which he feared Modi would unleash a "holocaust" if elected Prime Minister. Ravi Srinivasan was arrested in Puducherry for tweeting "got reports that karthick chidambaram has amassed more wealth than vadra." Vicky Khan, a class XI student, was arrested for reproducing a quote wrongly attributed to the Samajwadi Party leader Azam Khan. And Ambikesh Mahapatra, a Kolkata professor, was charged for circulating a cartoon of West Bengal Chief Minister Mamata Banerjee that the police said was offensive.
The irony is that none of these statements which the IT Act sought to criminalise fell under the purview of the "reasonable restrictions" that Article 19(2) of the Constitution imposes on the right to free speech. Besides sanctions envisaged by the laws of contempt and defamation, the freedom of expression in India can be restricted only "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality," or if it involves incitement to an offence.
Until 2009, when the Manmohan Singh government smuggled Section 66A into the IT Act, these were the only limits placed on the right of a citizen to speak freely using any medium.
What the offending section did was to not only render precarious the development of social media - a freewheeling space where informal discussion on current affairs is the norm - but it represented a long-term threat to the functioning of traditional media too. After all, most newspapers and TV channels have websites where they upload their content. Section 66A meant that content which was otherwise protected as long it was printed or broadcast could be targeted for legal action if it were made available online.
By upholding the paramountcy of the Constitutional provisions on free speech, the Supreme Court has effectively restored the status quo ante, extending the same protections regardless of the medium through which citizens choose to express themselves.
The court wisely disregarded the assurances given by the Narendra Modi government and its UPA predecessor that official safeguards were in place to guard against Section 66A's "misuse". The irony is that these "safeguards" were not enough to prevent young Vicky Khan from being arrested, a fact that must have been noticed by the bench as it was preparing its verdict.
The court also said it would read down Section 79(3)(b) of the IT Act which makes "intermediaries" like internet service providers (ISPs) liable for punishment if they fail to "expeditiously remove or disable access to" material that is considered unlawful, such as posts which may fall foul of Section 66A or other laws, "upon receiving actual knowledge" or an official notification about this. This provision has had a chilling effect on free speech online, especially by activists and marginalized groups, as ISPs have tended to be highly risk-averse, and would rather delete supposedly offensive content upon receiving complaints rather than falling foul of the law themselves.
Even as free speech advocates applaud the boldness of the Supreme Court, it is worth remembering how most political parties have fought hard to retain Section 66A and other offensive parts of the IT Act.
When examples began to surface during the UPA years about the manner in which Section 66A was being used to harass ordinary internet users, Modi declared himself in favour of free speech and even changed his DP on twitter to black to convey his opposition to censorship. But in arguments before the Supreme Court, his government did a U-turn and argued strongly in favour of retaining the power to criminalise online speech.
Though over-zealous policemen can no longer invoke Section 66A to please their political masters, thin-skinned politicians still have other weapons in their armoury to harass or silence critics. Criminal defamation is one such method. Or filing frivolous complaints about promoting enmity between groups. Most of these charges eventually get thrown out, but the legal proceedings take time and the process itself becomes the punishment.
In an ideal world, our politicians will read the Supreme Court order and realize the need to be more tolerant of free speech, especially speech that is laced with sarcasm, wit, irony and criticism. But this is the real world, so please forgive me if I am not holding my breath.
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