The American Justice Robert Jackson had once observed in a judgment that "Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored."
Today in eloquent, mellifluous words, the Indian Supreme Court has given India what it deserves -- a chance to experience free and open Internet and protection against censorship. The court said that Section 66A of the IT Act was not compatible with the morality of freedom, with our constitutional law, or with the human rights of every Indian. Even as successive governments were busy dithering, ducking, making U-turns, attempting as much as possible to change the subject, and, wherever they failed to change the subject, took the excuse of national security, the believers marched on. This is a victory for all of them, the quiet and some not-so-quiet comrades in the fight for free speech and expression, who could not and would not shake off the constitutional values and rights we hold so sacrosanct.
Since its introduction back in October 2000, the Information Technology Act has proved to be a highly controversial piece of legislation. In its thirteen-odd years of operation, the Act has managed to draw considerable criticism from the legal community and the general public. This judgment has capped it well and put our fears to rest. Finally, the rigmarole of 66A arrests will cease. Companies won't be harassed any more to erase all negative comments about anyone who does not like a negative review about a certain Mr Ponytail and company.
"It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. "
Section 66A was introduced without any debate in the Parliament through a 2008 amendment post the Mumbai attacks. It quickly garnered a reputation as a convenient tool of political censorship. Concerned by the recurring arrests made under Section 66A, a young law student filed in public interest before the Supreme Court challenging the constitutionality of 66A. Several others joined, variously challenging other nefarious parts of the IT Act.
One such petition was by the aptly-named MouthShut.com (India) Pvt. Ltd, filed towards quashing the Intermediaries Guidelines Rules that force intermediaries to screen content and exercise online censorship, a system of censorship by proxy. This rule was in effect outsourcing the dirty work to the companies against which a citizen has no rights.
Today, the Indian Supreme Court in a landmark judgment reminded us that the freedom of speech and of the press is the Ark of the Covenant of Democracy, because public criticism is essential to the working of its institutions. Striking a blow at Section 66A, the Court noted that the section intends to punish any person that uses the Internet to disseminate any information that falls within vague words used in its draft. It makes for interesting reading even for non-lawyers as Shakespeare appears to explain the difference between advocacy and incitement.
Section 79 IT Rules that provide safe harbor to companies like Facebook, Twitter, Mouthshut also have found great relief in this judgment. Now a Court order is mandatory and an intermediary is only required to take down content upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material.
Several substantial questions of law have been decided which have far-reaching implications on Indian technology law and the civil liberties of Indians. While yesterday we did not know how to defend the multitude of bans, today the mind is without fear and the head is held high. Because of the Supreme Court, Internet in India has achieved freedom!