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Millennium Post

Abridged for good

Constitutional restrictions on freedom of expression need to be translated into strict laws to avoid misuse and public disorder

Abridged for good
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Freedom of speech and expression as a basic human right has acquired greater significance today as motored by the fastest medium named social media. 'Apps' on cell phones connecting people across the globe help disseminate news, views, entertainment and opinions about anything and everything under the sun. When the reasons to celebrate the amazing revolution in communications are plenty, the causes to worry are no less either — the spread of misinformation and propaganda; and endangering social harmony and democratic order are the most immediate of all. Abuse of freedom is in fact an abuse of a fundamental human right, which can potentially threaten national integrity and democratic polity.

When the Government recently conveyed its concern over misinformation and provocative content on Twitter with regard to the ongoing farmers' agitation and asked for blocking of 1,178 accounts, Twitter management refused to oblige saying that the orders were inconsistent with Indian law. Twitter apparently misread the law. Further in its blog, Twitter 'laments' that the values that underpin the open internet and free expression "are increasingly under threat around the world". One will only wonder how Twitter could so quickly forget the most shameful attack on Capitol Hill in Washington on January 6 by supporters of Donald Trump, incited by his tweets and 'free' speeches to which the Twitter played a useful host for. Worse was, after avowedly banning Trump for 12 hours, it allowed him to tweet again who eulogised the vandals who stormed Capitol Hill as "patriots". He also said "We love you." Such contradictory disposition of Twitter is but an intellectual dishonesty writ large. Besides, the glorification of the misuse of free speech and expression is a bad example of social responsibility.

Unfortunately, it appears that the right to free speech and expression is more misunderstood than understood. Article 19 of the UN declaration of human rights lays down that 'everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. The Constitution of India too has enshrined the freedom of speech in Article 19 in clauses '(a)' to '(g)' detailing various freedoms such as freedom of speech and expression, to assemble peaceably, form associations, move freely throughout the country etc. Though it is undisputed that freedom of speech is the mother of all freedoms and is an inseparable part of democracy, such freedom is not to be mistaken as absolute or unfettered. Freedom of speech and expression is not only a fundamental right guaranteed by law, but is equally a fundamental responsibility to enjoy such right within the parameters of the 'procedure established by law' ( as read with Art. 21 of Indian Constitution) whose violation can make the very 'right' infructuous. Article 19 while guaranteeing the right to free speech and expression on one hand, also lays down on the other, the riders to prevent misuse of the same. It says, "Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 in relation to contempt of court, defamation or incitement to an offence". Inciting hatred through the spread of misinformation and insurgency can potentially cause a threat to public order immediately and to national security in the long run. The State in such an event has a constitutional duty to impose reasonable restrictions on regulating any and every form of speech or expression. No doubt, the right to peaceful protest is a part of the right to expression. Nevertheless, the leaders should be circumspect enough to weed off the miscreants who can damage the very cause by abuse of the right. The violence at Red Fort on January 26 after the parade is anything but freedom of speech or expression.

Sectarian concerns and vested interests motivate people to misuse freedoms. They care two hoots for the law of the land let alone the propriety. Offensive jibes, irresponsible remarks and hate speeches have become more common with the growing popularity and influence of electronic media in the country. Some demagogues tend to revel in hate speeches to gain quick popularity, justifying it in the name of freedom of speech — a pathetic travesty on the contrary. When some escape smartly with 'regrets' for use of unparliamentary language or offensive remarks, others get away by conditionally apologising to the victims after much damage has been done. Prosecution for defamation against the accused is a long-drawn process in the court of law and interestingly there are ten exemptions provided in law (Sec 499 IPC) which make it very difficult to book the offenders.

While upholding freedom of speech in several cases as an uncompromisable basic right guaranteed by the Constitution, the Supreme Court has also justified reasonable restrictions. In Pravasi Bhalai Sangathan vs Union of India & Ors, the Supreme Court has aptly observed that hate speech can lead to discrimination, ostracism, segregation, violence and, in the most extreme cases, to genocide. In Secretary, Ministry of I&B versus Cricket Association of Bengal in 1995, the Supreme Court though held that citizens should have the benefit of the plurality of views because a successful democracy needs an 'aware' citizenry, it maintained in the same breath that such freedoms are not unconditional. The Supreme Court on October 5, 2017, also expressed concern over abusive and derogatory comments on social media and agreed with the contention of senior advocates Fali Nariman and Harish Salve that people doing so should face consequences.

Far from grooming people towards a progressive outlook, freedom of speech and expression through its worst form of abuse seems to polarise society on divisive lines such as faith, race or colour. Effective laws are in force in many countries. More than a dozen countries including Turkey and Iran have imposed various restrictions. China, Cuba, Mauritius, Egypt, Syria, Bangladesh and Vietnam have come down heavily on ISPs. The European Data Protection Regulation bans kids under 13 from use of social media. The US has a twofold mechanism for controlling internet freedom through. federal and state laws. Though the first amendment guarantees freedom of speech and expression, federal laws are enforced to prevent indecency, fraud etc. Children's Internet Protection Act (CIPA), Communications Decency Act (CDA), Stop Advertising Victims of Exploitation (SAVE) Act of 2015 are some which indirectly control social media. Quite a few states in the US have also enacted laws to locally control obscene or indecent online material or content. India also needs more stringent laws. Notwithstanding Section 69 A of the IT Act and Rules (2009) — which the Government invoked presently in its order to block certain Twitter accounts — the existing cyber laws hardly possess the required teeth. IT (Intermediaries Guidelines) rules, of course, bind providers of telecom network, internet, web hosting services etc., towards the exercise of due diligence on content but Section 79 of the IT Act, 2000 is a blemish as it also, at the same time, grants immunity to above ISPs against any objectionable content hosted 'after due diligence'. Better late than never, it's time to act effectively.

The writer is a former Additional Chief Secretary of Chhattisgarh. Views expressed are personal

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