By Chinmayi Arun
March 27, 2015
The nail-biting focus on the Supreme Court’s hearings in the Shreya Singhal case made it clear that the outcome of this case was important. The SC has surpassed all expectations. Lawyers, writers and activists are celebrating this judgment, which goes beyond striking down a shamelessly repressive law to developing powerful, even beautiful, free speech jurisprudence that can be used to correct other efforts at stifling our speech.
The trouble with Section 66A of the IT Act was evident from the grossly unjust arrests taking place under its cover. The most widely publicised of these was the arrest of Shaheen Dhada for her Facebook post after Bal Thackeray’s death in Mumbai. In response to extensive public pressure and questions from the judiciary, the Indian government took the position that the injustice resulted from a misuse of Section 66A. While pleading that Section 66A should be retained, the government offered the SC its assurance that it would use advisories and other methods to stop Section 66A arrests for constitutionally protected speech. Justice Rohinton Nariman ridiculed these assurances in the judgment, pointing out that “governments may come and governments may go, but Section 66A goes on forever”. He explains that one government’s promises do not bind its successor, and that the poorly drafted provision must be evaluated on its own merit, without reference to how it is administered.
The language used in Section 66A criminalised the sending of information described in terms as broad and vague as “grossly offensive”, “annoyance” and “inconvenience”. The court has categorically said that these are undefined terms that would cover a lot of protected and innocent speech. The judgment explains that the section needed to be struck down as unconstitutional on account of overbreadth, since it took within its sweep constitutionally protected speech and lent itself to use that chilled free speech. The court also found that the vagueness of the words used in 66A was such that there was no reasonable way to ascertain whether a person had committed an offence or not.
Since all law restricting expression in India has to be covered by one of the reasons for which the Constitution permits reasonable restriction of speech, the government had also advanced the argument that Section 66A restricts speech in the interests of “public order”, “defamation”, “incitement to an offence” and “decency or morality”. The SC examined Section 66A against each of these heads and found that it fell short of the standards required by the Constitution to qualify as reasonable restriction. Section 66A did not contain any requirement of a tendency to create public disorder, did not concern itself with injury to anyone’s reputation (required for defamation), had no connection with the incitement of an offence and did not so much as use the word obscene. The court therefore recognised that the government was drawing an artificial connection between the law and the constitutional grounds under which speech can be restricted.
It is common for Indian judges to avoid striking down bad law, and to attempt instead to salvage it by reading over-broad terms narrowly or even reading words or procedures into the law to make it consistent with the Constitution. This judgment stands out in this respect since Justices J. Chelameswar and Nariman had the courage to call the government out for its deplorably drafted law. The SC declared that there was no way to soften Section 66A and make it consistent with the Constitution, without doing its language “complete violence” and substituting it with words that it was never intended to contain.
Although the judgment efficiently demolishes the government’s argument to retain Section 66A on multiple counts, finding it vague, over-broad, overly restrictive of protected speech and utterly inconsistent with the Constitution, its most shining moments lie in its articulation of what freedom of expression means in India. Our Article 19 is frequently compared to the US’s First Amendment, especially in the context of online speech. It is common to hear people say that our freedom of expression rights are less permissive. The Shreya Singhal case traces out the ways in which our Article 19(1)(a) offers us stronger protection of our expression than the First Amendment. It points out that while speech can be restricted in the US if there is a compelling necessity to achieve an important governmental or societal goal, it cannot be restricted in India on broad public interest grounds if it does not fit one of the eight permissible reasons listed in the Constitution.
In the wake of international infamy over the government’s blocking of India’s Daughter, this judgment is a monumental reminder that we are a democracy with an independent judiciary and a formidable Constitution. Given the size of this country, it comes as no surprise that it can take some time and a lot of bad press before citizens successfully move the judiciary to protect their rights. Hopefully, the government will take its cue from the judiciary and move to rebuild its content-blocking regime into the sort of transparent and accountable system that a democracy ought to have.
Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi.