Speaking for Freedom
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.
Source: http://indianexpress.com/article/opinion/columns/speaking-for-freedom/99/
URL: https://newageislam.com/current-affairs/speaking-freedom/d/102146