The striking down of Section 66 (A) of the Information Technology Act by the Indian Supreme Court is a landmark victory for the right to freedom of speech and expression. Not only is the decision welcome in light of the innumerable efforts by both the present government and the previous one to stifle critique and dissent of the representatives of this country, the judgment is also striking in its conciseness, eloquence, and clarity -- rare features these days in judicial decisions.
The law was initially challenged by a law student, Shreya Singhal, after the arrest of two young women in 2012 who posted comments on Facebook that were critical of the complete shutdown of Mumbai after the death of Bal Thackeray, the Shiv Sena leader. One of the young women stated that the shutdown was out of fear and not respect; the other woman was arrested for liking the comment. Not only was this provision broad and vague -- covering any information through the Internet that was "grossly offensive" or had a "menacing character", or that caused inconvenience, annoyance, danger, insult or ill will -- it placed an extraordinary amount of power in the hands of law enforcement to interpret what constituted such "annoyance" or "insult", including it seems basically anything that seemed an irritant to a politician.
"Sexist representations or indecent speech cannot be fought through more curtailment of speech, and handing even more power to the Censor Board to determine what is appropriate for us to see, but by developing a clear strategy in favour of sexual speech and sexual rights."
Needless to say this provision was used arbitrarily to protect our hallowed leaders from the criticism of those who they are supposed to represent. The incidents of arrest under the impugned provision included that of free speech campaigner Aseem Trivedi, in Mumbai, for displaying cartoons on his Facebook, mocking Parliament, which was depicted as a giant commode bearing a national emblem of wolves instead lions. A university professor, Ambikesh Mahapatra and his neighbour, Subrata Sengupta, were also arrested in 2012 for allegedly circulating a satirical cartoon of Mamata Banerjee. Two Air India employees were arrested for allegedly posting indecent jokes about the Prime Minister and other politicians. The latest arrest occurred in March 2015, when a Class 11 student was sent to jail for posting objectionable comments about Azam Khan, a minister in Uttar Pradesh. Almost all the arrests occurred between 2012 and 2015.
Perhaps what is most important about this decision is that after a very long time the Supreme Court has supported the right to freedom of speech rather than upheld and reinforced an increasingly censorious regime justified under the reasonable restrictions permitted under article 19 (2).
In fact, some progressive groups need to question how they have also been implicated in facilitating this tendency towards curtailment of speech. For example, some feminists groups have resorted to invoking the provisions of Article 19(2), which justifies the curtailment of speech on the grounds of decency and morality, more frequently than they have invoked the right to free speech itself. Hindu right wing groups have invoked Article 19(2) to attack pluralistic representations of Hindu culture.
"Probing the limits of free speech cannot be pursued before we know what the full possibilities of free speech are."
Sexist representations or indecent speech cannot be fought through more curtailment of speech, and handing even more power to the Censor Board to determine what is appropriate for us to see, but by developing a clear strategy in favour of sexual speech and sexual rights, as sexual minority groups are increasingly doing. And attacks on cultural pluralism require a strategy that challenges those who claim to be the repositories of Indian cultural values, defending a singularly bigoted and orthodox position, including deeply sexist familial representations of woman. The work of Wendy Doniger, recently withdrawn by Penguin, and other authors who are defending this pluralism, need to be unconditionally defended and circulated widely.
Free speech that translates into internet misogyny and cyber-bullying or bigotry, moral injury, and hatred are arenas that still require more debate and discussion. However, for the moment, India is living under a regime of less speech and more regulation. Probing the limits of free speech cannot be pursued before we know what the full possibilities of free speech are.
The internet has become an invaluable space for speech, especially in times when fear and intimidation have become a pervasive mode of governance and increased surveillance a technique for monitoring the citizen's speech and behaviour. The Supreme Court has played a historic role in ensuring that speech should and must be used to halt the increasingly untrammelled power by the State and its representatives, who have yet to prove themselves worthy of the citizen's respect. Politicians must live with the ire, sarcasm, and vitriol expressed through the internet, as well as visual and print media, for as long as it takes for them to realise that they are servants of the people, accountable to the people, and not demi-gods, beholden only unto themselves.