The verdict is clear: free speech reigns on the internet in India; albeit with the necessary disclaimers. Section 66A of the Information Technology Act has breathed its last. Section 66A, whose stated purpose was to fight spammers, prescribed a prison sentence for anyone who sends an electronically transmitted message that “caused annoyance”; to be precise, three years in prison for posting offensive statements online. During its long-lived reign of terror Section 66A was flagrantly misused by politicians, whose fragile egos had been punctured and by anyone whose ‘sentiments’ had been hurt.
Amongst its victims included Shaheen Dhada and Renu Srinivasan, who had protested Bal Thackeray’s funeral bandh and promptly got arrested; Kanwal Bharti who was arrested for criticising the Uttar Pradesh Government’s stand in the Durga Shakti Nagpal case; and India Against Corruption volunteer and businessman Ravi Srinivasan, who was arrested because Karti Chidambaram, son of then-finance minister P Chidambaram, found his tweet offensive.
Today, the Supreme Court struck down the section, declaring it unconstitutional and extremely vague to be used with any demonstrable degree of objectivity. The bench, consisting of Justices Chelameswar and Rohinton Fali Nariman made the following observation: Only when discussion and advocacy reach the level of incitement, is Article 19 (2) (of the Constitution of India), which puts reasonable restrictions on freedom of speech, applicable. Cheering the verdict were the collective denizens of the internet in India. Twitter and Facebook were ablaze with posts cheering the verdict. The collective mood of internet users in India today was one of cheer and jubilation.
Political parties ever ready to jump onto the bandwagon instantly sent their spokespersons to the television studios to state how they have always supported the repeal of Section66A. Interestingly, the claims made by these aforementioned spokespersons were patently false. If the present Bharatiya Janata Party government had its way-Section 66A would never have gone away. “It is submitted that in this milieu of rapid technological advancement, even a single unlawful/illegal message or image has a potential to tear the social fabric and destroy peace and tranquility,” the government had said in its reply to the petition filed to strike down the draconian provision. Even worse, Tushar Mehta, the additional solicitor general, who was representing the government, had said that there needed to be greater curbs on the Internet than mainstream media: “There are institutions which are working in other media whether it is paper, television or cinema. There is an institutional approach and there are checks like pre-censorship for TV and films. But in internet there is individual approach and there are no checks and balances or license.”
By defending the provision when it existed and supporting its repeal when it was struck down, the present government has kept up the shameful tradition of doublespeak by political parties in power. In fact our nation’s reluctance to support free speech goes back to our founding fathers itself. The unamended constitution, which our founding fathers gifted to this nation, guaranteed every citizen “the right to freedom of speech and expression”. Within a week of this constitution coming to life, the then Home Minister Vallabhbhai Patel had written to Prime Minister Jawaharlal Nehru complaining about how this provision prevented the government from controlling and regulating the press. Even more troublesome according to Patel was the fact that under the freedom of speech and expression provision, the government would be unable to gag firebrand leaders of the Hindu Mahasabha. Thus it was no surprise that when the very first amendment was made to India’s constitution, it sought to restrict freedom of speech.
Given this historical context the Supreme Court judgement is a landmark one for many reasons. What each of these laws: 66A, 79 and 69, did was silence and shut-out dissenting counterfactuals and dissent rising from various corners of the internet in India. This ultimately had a near fatal effect on free speech with many internet users censoring themselves consciously, lest they offend the powers that be. Credit for this ruling must go to both the Honourable Supreme Court Justices and Shreya Singhal, a lawyer who in 2012 had filed the petition seeking an amendment in the section 66A of the Information Technology Act. Despite this ruling it’s not a free for all vis a vis free speech in India. For one the ruling only applies to the internet. Article 19 (2) still stands. Also, interestingly the Supreme Court upheld Section 69 in its entirety. Section 69 allows the government to block websites. It means that the government can still block a website it finds inconvenient with impunity. Hopefully, post this ruling, the present government will tread with caution, while implementing Section 69. Complete freedom of speech with no restrictions may still be a distant dream in India. Today, however, an important step was taken in that direction.