Author: Tanushree Bhattacharya
The fundamental right of freedom to speech and expression is considered as one of the most sacred rights and also a salient feature of any democracy. Although it is natural that this right is not absolute in the sense that it provides protection against any kind of hate or indecency being spread. There is always a moral duty that comes along with one’s fundamental rights, which is implied. But at the same time, it does not mean that the state is empowered with the right to curtail someone’s freedom of speech and expression for merely stating innocent facts that opinions, just because they don’t sit right with the political ideologies of the state. A similar situation arise dint he case of Shreya Singhal v. Union of India, a 2015 judgement where the state chose to curtail the right of freedom of speech and expression and also detain several people in connection to their statement of views on the internet, Facebook specifically.
This case dates back to November 2012, when two girls based in Mumbai were arrested by the Mumbai Police for their Facebook posts wherein they criticized the shut down of the entire city during the funeral of the notable leader and Shiv Sena chief, Bal Thackeray. Similarly, certain other people were arrested for making cartoons as well as expressing their opinions against prominent politicians. The arrest was made under section 66A of the IT Act, 2000. Interestingly, the section uses terms such as ‘annoying’ or ‘offensive’ which are rather vague and subjective and not defined under the law. This incident led to the entire section being challenged in front of the Supreme Court of India by a law student named Shreya Singhal. It also took into consideration the fundamental right of freedom of speech and expression granted by article 19(1)(a) of the Constitution of India especially on the Internet. The two judge bench in this case consisted of Justice Chelameswar and Justice Nariman.
The primary issue before the court here was whether the provision of section 66A of the IT Act, 2000 violates article 19(1)(a) of the Constitution of India i.e., the right of freedom of speech and expression.
Legal Provisions used in the case are as follows-
- Section 66A of of the IT Act, 2000
- Section 69A of IT Act, 2000
- Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules, 2009
- Section 118(d) of the Kerala Police Act
- Article 19 of the Constitution of India
- Article 14 of the Constitution of India
- Article 21 of the Constitution of India
It is relevant to note that freedom of speech and expression in India is not absolute and can be reasonably restricted on the grounds of the interests of the sovereignty and integrity of the country, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation of contempt of court, defamation or incitement to an offence and no other ground. But what stands out is that the section prohibited speech on the grounds not mentioned in the section, i.e., annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation or ill will. The court discussed three fundamental concepts essential in understanding the freedom of speech and expression which were- discussion, advocacy and incitement. It held that mere discussion or advocacy of a cause however unpopular, cannot be contained. It is only when the discussion or advocacy amounts to incitement that the right can be curtailed. The court relying of the above reasoning, found the section 66A escapable of limiting all forms of internet communications as it seems no distinction between mere discussion or advocacy on a particular point of view which may be annoying or inconvenient to some.
The concept of chilling effect means that when governmental laws and activities are of such nature that while they do not directly sensor free speech but nevertheless have the impact of self censorship. This is usually done by making excessively vague laws where citizen in order to keep himself/herself on the right side of the law, will end up refraining from engaging in activities which are completely legal and legitimate forms of speech. In other words, when laws are vague, one may prevent himself/herself from doing acts which s/he is legally allowed to do. This aspect was also addressed by the court wherein it held that since the said provision fails to define the terms such as inconvenience or annoyance, substantial amount of protected and innocent speech could be curtailed. Finally, the court declared the section 66A of the IT Act, 2000 unconstitutional on the grounds of violating article 19(1)(a) of the constitution of India. Therefore, freedom of speech prevails in the country as long as it does not amount to incitement.
French writer Voltaire once said, “I, may not agree with what you say, but I will defend to death, your right to say it.” As a democratic nation, it the freedom of speech and expression is an important tool in sharing ideas and opinions. The world is now moving to completely digital platforms in all aspects of life, especially through the current global pandemic that has forced all of mankind to be locked up in their houses. Thus, as an evolving ‘digital democracy’ it is essential to allow a controlled but fairly liberal approach towards the freedom of speech and expression. In the recent past, there have been several blatant curtailments of this right like the case of comedian Munawar Faruqui being put behind bars, making us wonder if the right exists at all in its entirety. This kind of an approach involving the chilling effect is not healthy for a democracy like India that is home to the kind of diversity it is. While it is necessary to be respectful, courteous and civil in what we say or post, it is equally necessary for everyone’s voice to be heard for justice to prevail uniformly and across all the lengths and breadths of the country.