Intro: It’s important for Indians to not treat the judgement on Section 66A as a victory of any sort but treat it as a milestone judgement.
It is a matter of great celebration that Section 66A of the Information Technology act has been struck down in a landmark judgement which is being remarked by many to be a path breaking judgement of the honourable Supreme Court. On various social media platforms, the said judgement of the honourable SC of India is being compared to India getting independence. However, the question that we need to ponder upon is, what will be the impact of the judgement and where do we presently stand in relation to the freedom of speech and expression in context of the judgement.
What the Supreme Court has done in the present case is to strike down the famous section 66A of the Information Technology Act, which made it illegal to circulate any information that was grossly offensive or of menacing character or any information knowing the same to be false for the purposes of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource communication device. The same has been struck down on the ground that it violated Constitution and was draconian in nature. The said section was also struck down on the ground that it arbitrarily and excessively invaded the right of freedom of speech and expression.
The Supreme Court however while striking the above section down chose not to strike down section 69A and section 79(3) of the Act. Section 69A deals with the power of blocking offensive websites by the government. The court has upheld the same. In relation to section 79(3) which fixes the duty liability of the intermediary which is basically the web host of the message to take the offensive messages at the request of people offended by the same, the court read down the power of the those offended to have the power to take down messages only on specific directions of a court or of the government.
Interestingly, the court upheld the Blocking Rules, 2009 which provides a procedure to block websites if they pose a threat to the sovereignty and integrity of India, defence of India, security of the state, the friendly relations with foreign states, public order, preventing incitement to the commission of any cognizable offence relating to the other above-mentioned categories.
Therefore, in case people are thinking that the judgement of the Supreme Court in the case of Shreya Singhal vs Union of India has brought in unlimited freedom on the internet, they are deluding themselves.
It also bears remembering that in addition to the Information Technology Act, the government still retains the power to act against persons under the Indian Penal Code and various other laws which govern criminality. The penal provisions against defamation, incitement, abetment for offences remain on the statute book. These provisions are not likely to go anywhere.
The question therefore arises is what are we celebrating then? It seems from reading the entire scenario that there is not much to celebrate about. The judgement does not change the fundamental rules of the game. The judgement only knocks down a much maligned provision while keeping intact the entire arsenal needed to control freedom of speech on the internet.
The second question which obviously arises once we get beyond the euphoria of having our right to post as we want to on the internet vindicated by the Supreme Court, is a broader question as to whether unlimited freedom of speech and expression which seems to be playing in the mind of the Supreme Court is a good thing or a bad thing?
Interestingly, the court while pronouncing the above judgement has accepted the logic of the Internet which is the logic of the freedom of speech in America. In other words it has upheld the rights that a person has a right to unlimited freedom of speech to the extent that it is limited only to the extent that if it creates a physical danger to another person.
Needless to say that the freedom of speech and expression is not an unlimited right under the Constitution. The limitation on the inherent right of freedom of speech and expression was a consensus across the board in the Constituent Assembly. Interestingly the only person who had spoken out for an unlimited freedom of speech and expression right in the Constituent Assembly was Shri Syama Prasad Mookerjee, however he was in a very miniscule minority.
The wisdom which is included in the restriction on the right to freedom of speech and expression in the Indian Constitution which is enumerated under article 19(1)(a) is that any speech and expression is always subject to article 19(2) which puts a reasonable restrictions on the right. In other words you have the right to say whatever you want to as long as it does not go against the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The reason why the right to freedom of speech and expression is different from that contained in the Constitution of the United States of America is that our society is different from that of America. It is therefore in the interest of the government as well as the people that they respect others’ sensibilities and limit their freedom of speech and expression to the extent that it does not offend others leading to a violent situation. Culturally and historically speaking we as a society also believed in self restraint while exercising our right to speak. The right to offend is not an integral part of Indian culture. This is not the same in America which is much more uniform society and where the right to offend others while exercising the right to freedom of speech is much more ingrained and has historical and cultural antecedents.
What the Supreme Court has done in the case of Shreya Singhal Vs Union of India is that it has attempted in many ways to fit the definition of the American Constitution in relation to freedom of speech and expression into the Indian scenario. As discussed this became necessary because of the internet which believes in unlimited freedom; the internet being a product manufactured by the United States of America and therefore reflecting its values in the norms which govern it. The Supreme Court has therefore tried to strike a balance of the need to restrict the freedom of speech and expression while balancing it with the need to be progressive in relation to the values espoused as norms in the Internet age.
As a thinking person it is important that we realise that beyond the celebration a lot has been left unsaid behind-the-scenes. It is this dynamics between the Indian society and essentially an American invention governed in accordance with American norms and values which is going to open up vistas of conflict and challenge in the future. This case is only the first amongst others which will arise in future through which we will as a society try to navigate this complex world. It is important to realise that the future can only be navigated through the method of trial and error. What is correct and what is wrong can only be decided in hindsight. It is therefore important for us to not treat this judgement as a victory of any sort but treat it as a milestone in our journey into the brave new world.
Vikramjit Banerjee (The writer is an Advocate of the Supreme Court of India)
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